New Delhi: On 12 March 2020, posting the case for hearing before a larger bench, a bench of two justices of the Supreme Court told the Uttar Pradesh government that there was no law to support its action of putting up massive hoardings with mug-shots, names, and addresses, for persons allegedly involved in the destruction of public property during protests against the Citizenship Amendment Act.

The UP government was in the apex court only because it had already been told this by the Allahabad High Court on 9 March, which first ordered the hoardings be taken down and held the government’s actions violated the fundamental right to privacy.

On 15 March there was a law to support the government: Ordinance No. 2 of 2020 was passed, empowering the government to publish personal details of individuals allegedly involved in the destruction of public property.

A reading of the statement of objects appended to the Ordinance shows that this power to publish personal information was now couched as being part of a web of powers to help the state “to deal with all such acts of violence at public places and to control its persistence and escalation and to provide for recovery of damage to public or private property during hartal, bundh, riots, public commotion, protests or thereof, in respect of property and constitution of claims tribunals to investigate the damages caused and to award compensation related there to.”

This essay does not engage with the aspects of Ordinance No. 2 of 2020 I just mentioned. It is only concerned with powers to publish personal information conferred by Sections 13 and 19. I will not reiterate the arguments on privacy that were put forth in the Allahabad High Court’s order and still remain valid in spite of this hastily drafted law, which was put together in two days from the Supreme Court hearing. I will also not engage with the issues of vagueness and arbitrariness that cripple the Ordinance, and especially the power to publish personal information.

My focus here is how the UP Ordinance affects the presumption of innocence.

The UP Ordinance And The Power To Publish Personal Information

In prior court proceedings, when this hastily drafted Ordinance did not exist, the stand of the state government was to project the hoardings as having a deterrent purpose; to instil fear in the mischief-mongers and deter them from engaging in criminal acts.

In adopting this position, the state was speaking the language of criminal law—it saw these persons, named in FIRs, as criminals, and wanted to dispense swift punishment, in the hope to deter further wrongdoing.

The language of Ordinance No. 2 of 2020 is designed to move away from this initial stand. It is meant to serve as an enabling law to help determine property damage resulting from violence and assess the compensation claims in what are civil proceedings before a Claims Tribunal, giving it powers to attach properties of respondents to make good the loss.

The Ordinance links powers to publish personal information expressly with the compensation aspects of this law. Thus, Section 13 empowers the Claims Tribunal to attach properties of persons who do not appear, and consequently publish their personal details “with a warning for the public at large, not to purchase the property of the respondent.” Similarly, at the conclusion of the adjudication process, if the Claims Tribunal orders attachment of properties, Section 19 provides for publishing the personal details with the same warning.

Thus, what we have is a law which is avowedly about identification and attachment of property to assure recompense for damages, and wants to publish full-page ads to warn persons who are purchasing property. However, rather than identify the suspect property in advertisements, the law instead permits publishing the details of suspects themselves.

The Perilous Civil-Criminal Divide

Projecting the Ordinance as a civil proceeding for recovery of dues and attachment of property is not accidental, but driven to exploit a faultline in the legal system. This faultline is one that allows the state to launch parallel proceedings against the same person in respect of the same underlying criminal conduct. This does not offend the double jeopardy protection, as long as all these proceedings are different in form and structure.

For instance: Money laundering is a crime that is based on generating proceeds from prior criminal conduct, and will be prosecuted. But at the same time, civil proceedings for the attachment and confiscation of those very proceeds of crime can be launched simultaneously before tribunals.

The property attachment is not seen as additional punishment for the crime, for it is not punishment arising from a criminal prosecution. It is instead a question of civil liability, in which the issues of guilt and innocence are not in question [Explained at length in this paper (starts at pg. 74)].

This parallel-proceedings strategy carries other benefits, aside from multiplying the adverse consequences for the same underlying conduct. Since these property attachment proceedings are not criminal proceedings, they do not carry the blanket of procedural protections that are part of a regular criminal case.

Thus, there is no burden on the state to prove facts beyond a reasonable doubt, nor is there any right to remain silent for the respondent here. This makes the government’s job of proving its case easier and makes attachment proceedings more attractive than a criminal trial.

A Thick Presumption Of Innocence

On its face, Ordinance No. 2 is a civil proceeding focused on recovery of dues for damage to property. But on closer inspection we find it is tied to the underlying criminal case for public violence registered by the police.

Not only does Section 3 of the Ordinance state that the Claims Tribunal cannot swing into action without an FIR and a report by police, the Ordinance then gives the Claims Tribunal jurisdiction to wade into the same issues of fact that will be the subject of the parallel criminal case, such as who was responsible for the violence and what is their role.

This subsequent de-tagging from the underlying criminal case makes the civil proceedings more pernicious and not less. Now, we have a different government body engaged in a parallel fact-finding process on the same set of allegations that the police are investigating, which will pass its findings well before the police investigation concludes.

That this is a civil proceeding carrying the attendant threat of property attachment will force individuals to take a stand that will completely erode the purpose of the parallel criminal investigation with its safeguards. And the perversity of the situation is all the more apparent when we consider that the Ordinance does not provide for contingencies if the underlying criminal case ends in an acquittal for someone who had been held responsible by the Claims Tribunal.

The UP Ordinance and its odious procedure thus offer a wonderful example to demonstrate the need for a holistic, or “thick”, notion of the presumption of innocence, something that Professors Ashworth & Zedner bat for at length in their monograph on Preventive Justice.

As they forcefully argue, society cannot imagine the presumption of innocence as simply being a tool to help the accused defend herself in a criminal trial, and thus unaffected from everything else. Rather, we must imagine the presumption of innocence as part of the rights that inhere in every citizen, by virtue of their person.

Thus, it is something that is part of how the state must treat all citizens at each point in time, not just when it launches a criminal prosecution. Only then does the idea of a presumption of innocence mean anything. Shifting this presumption of innocence and the ability to label citizens must need more than mere allegations being levelled by a police agency: it must need proof of guilt, established beyond reasonable doubt, before a neutral forum. We should not settle for anything less.

Picture Imperfect

The protection against double jeopardy, the right to silence, and the presumption of innocence, are principles far too critical for their fate to be hinged on the nomenclature of legislation and the form conferred upon legal proceedings. A look at the substance of things is necessary to ensure that expediency for realising political goals does not run roughshod over the rule of law that we proudly locate in the Constitution of India.

Unfortunately, the Indian Supreme Court hasn’t encouraged a substance over form approach when it has been faced with the task of navigating the issues posed by the civil-criminal divide. Beginning with Maqbool Hussain in 1953 and most recently in a 2016 decision titled Yogendra Kumar Jaiswal, the Court has repeatedly privileged form over substance when, for instance, it has been faced with the issue of how to treat the forfeitures of property for alleged criminal acts. And never has the Court considered the impact of parallel civil proceedings on the presumption of innocence. What’s more, the presumption of innocence rests on shaky footing in India as it is, with the Supreme Court refusing to consider it as part of Article 21 and calling it a “human right”.

All of the above makes me skeptical about whether courts will be willing to consider how problematic the UP Ordinance No. 2 of 2020 is for the presumption of innocence. But it is clear the UP Ordinance, with its perplexing procedures, strikes a deadly blow to the presumption, whether we think of it as being a “thin” presumption or a “thick” one.

Previously on Article14:

As UP Hoardings Stay, Those ‘Shamed’ Fear For Lives

(Abhinav Sekhri is a Delhi-based lawyer who writes on criminal law and procedure.)