Why in news?

The Supreme Court has extended the interim order staying the directives of the Uttar Pradesh and Uttarakhand governments that the eateries along the Kanwariya pilgrim route must display the names of the owners and the staff.

The stay order will continue till August 5, the next hearing date.

What’s in today’s article?

• Background of the case
• Key takeaways from the hearing
• Legal basis for the directions issued by police
• Police directives and shopkeepers’ right to privacy
• Police directions and the issue of discrimination

Background of the case

• Directive issued by the Muzaffarnagar district police
  • On July 17, Uttar Pradesh’s Muzaffarnagar district, directing hotels, dhabas, and shops on the route of the Kanwar Yatra to display the names of their owners and employees.
    • The Kanwar Yatra began on July 22 and will continue until August 19.
  • It said that while there is no intention of "religious discrimination," previous "law-and-order situations" have arisen due to shop names causing confusion among the Kanwariyas, who follow a strictly vegetarian diet.
• Directive challenged in Apex court
  • The notice has been challenged by several parties.
  • The petitioners argue that the directive targets Muslim-owned businesses by forcing them to disclose their religious identity, which could have economic consequences and lead to targeting of businesses and individuals.
  • They have requested that the directive be publicly withdrawn.
• Stay order by the SC
  • The Supreme Court has prohibited the enforcement of the public notice until further hearing.

Key takeaways from the hearing

• No Government Order
  • The Court noted that there was no government order empowering the police to give directions in this case.
  • In its order, the Bench observed that such directions could be issued under the Food Safety and Standards Act, 2006 or the Street Vendors Act, 2014 to ensure shudh shakahari (strictly vegetarian) food is served to the Kanwar Yatris.
• Limits to Police Action
  • The Bench stated that the police cannot usurp the powers of the competent authority under these Acts without a legal foundation.
  • The police directions asked shops to "voluntarily display" the names of their owners and employees.
  • However, the court noted the petitioners' submissions that penal actions had been initiated against food business operators, indicating that the police's actions may have overstepped their legal authority.
• Question of Discrimination
  • The court did not address the petitioners' constitutional arguments.
  • Petitioners argued that the directions violated Article 15(1) by discriminating against individuals based on religion and supported the practice of untouchability, which is banned under Article 17.
  • This, he contended, led to an economic boycott of establishments hiring people from backgrounds including Muslims and Dalits.

Legal basis for the directions issued by police

• Police did not cite any specific law in their directions
  • The Muzaffarnagar Police have not cited any specific law in their directions to shopkeepers, prompting the Supreme Court to consider which law might authorize such actions by the police and state governments.
  • Typically, in urgent situations involving "nuisance or apprehended danger," orders are issued under Section 144 of the Indian Penal Code, 1860, which is largely mirrored in Section 163 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
  • This provision allows a Magistrate, empowered by the state government, to direct individuals to refrain from certain acts to prevent public disturbances or danger to life and safety.
• SC guidelines for exercising power under Section 144
  • In 2012, the Supreme Court established guidelines for exercising power under Section 144 in the 'In Re: Ramlila Maidan Incident' case.
  • This involved a protest organized by yoga guru Baba Ramdev in 2011 against alleged corruption, where Section 144 was imposed, leading to police intervention at night.
  • The court held that actions by public authorities under statutory power must be tested on two grounds:
    • whether the action was within the legal authority conferred by law, and
    • whether it was reasonable.
• Onus on apex court
  • In the Kanwar Yatra case, the court must determine whether any law grants the police and state government the power to issue directions to shopkeepers and whether those directions were reasonable.

Police directives and shopkeepers’ right to privacy

• The court will need to decide if requiring businesses to publicly disclose the names of shop owners and employees violates their right to privacy under Article 21 of the Constitution.
• In the 2017 Right to Privacy judgment ('Justice K S Puttaswamy v. Union of India'), the Supreme Court recognized the fundamental right to privacy.
  • This included the "privacy of the mind," which covers religious faith and the freedom to express or withhold such choices.
• Justice D Y Chandrachud outlined a "three-fold" test for government restrictions on privacy:
  • There must be an existing law allowing such restrictions.
  • The restriction must serve a legitimate state aim.
  • The restriction must not be "disproportionate" to the government's objective, ensuring a rational nexus between the restriction and the objective.
• In the Kanwar Yatra case, the court will consider if the police directions restrict the right to privacy.
• If a supporting law is found, the court will evaluate whether avoiding a "law and order situation" is a legitimate aim and if requiring businesses to display names is a proportionate measure to achieve this aim.

Police directions and the issue of discrimination

• Article 15(1) of the Constitution states, “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”
• The court will need to assess whether the requirement for individuals to disclose their names, potentially revealing their religious and caste identities, constitutes discrimination against shop owners and employees based on identity, particularly targeting Muslim-owned businesses.
• The Muzaffarnagar police stated that the directions were intended to provide convenience to devotees passing through Muzaffarnagar district who abstain from certain food items.
• However, petitioners have argued that the directions are based on a discriminatory assumption that only people of certain castes/religions can prepare and serve satvik or pure veg food.
• Additionally, the court may consider whether these directions violate the right to "practise any profession, or to carry on any occupation, trade or business" under Article 19(1)(g).
• Petitioners claimed that the directions have led to the complete economic boycott of Muslim minorities.