By Shruti Gupta and Rounak Doshi
Introduction
In the past few months itself, a flurry of news with no basis has circulated worldwide during the coronavirus pandemic.[1] From rumours in England about non-white patients being left to die[2] to mobs in India suggesting patients suffering from the virus must be shot dead and their bodies prevented from being cremated due to fears of infection,[3] fake news has brazenly shown the potential to harm societies.
The recent Order[4] (hereinafter ‘the Order’) issued under §144 of the Code of Criminal Procedure, 1973[5] (hereinafter CrPC) by the Mumbai Police attested by the deputy commissioner of Mumbai police, Pranaya Ashok, in clause 4(i) of the Order imposed restrictions over the transmission of fake news, misinformation, incorrect information and other such objectionable content over social media platforms such as Facebook, Twitter, WhatsApp, and Instagram[6]
The intent of imposing this ban as cited in the Order issued on 23rd May 2020,[7] is to aid in containing the COVID-19 pandemic and prevent the panic and confusion that is elicited by the fake news, and the incitement of mistrust towards the government that it eventually leads to, as stated in clause 3 of the said Order.
Another reason for imposing such stringent measures is that the existing laws on similar lines like §54 of the Disaster Management Act, 2005,[8] §66D of the Information Technology Act[9] and §153A, §295A & §505(1) of the India Penal Code,[10] are not as strict as the situation demands. The criticality and the uniqueness of the situation demanded an Order extraordinary in nature and hence the promulgation became necessary.
The idea behind the Order might be justified, however, the far-ranging restrictions that it imposes puts a question and emanates the discussion upon the legality of the Order.
This blog-post seeks to discuss in detail and critically analyze the Order. The article would further assess the legal basis of the Order and provide a reasonable conclusion based on the analysis.
Critical Analysis
The prohibitions mentioned in the Order are ambiguous, they restrict the right to fair comment & criticism and further impose individual liability upon an individual for the acts which he has no control over. It is a well-established principle of law that any penalizing provision of law must give the person of ordinary intelligence a reasonable opportunity to know as to what is prohibited, so that he may act accordingly.[11]
Ambiguity in the language used
Clause 4(i) of the Order[12] mentions the term ‘distorting facts’ without actually defining the phrase ‘information that distorts facts’ or what is meant by ‘facts’. Without any such definition, any contrary opinion on a particular issue, given in good faith, may amount to being “distorting” without any knowledge of what authority considers being as facts. Moreover, the Order does not create any line of difference between distorting facts and contrary opinion on that fact.
A similar situation arose in Shreya Singhal v. Union of India,[13] where the Supreme Court (‘the SC’) explicitly mentioned that Section 66A of the IT Act 2000 has such a wide ambit that it practically covers every opinion on any subject and any serious opinion dissenting with the mores of the day would be caught within its net. With such broad reach of the Section it definitely has a chilling effect on the free speech guaranteed in the Constitution.
On similar lines, the aforementioned clause may result in the despotic application of this restriction where no differences of opinion would be appreciated. For example, an individual sending a message about an anti-COVID 19 medication proposed by one research association, might be seen as distorting by another individual who believes in some other research association. Thus, without any proper definition of facts and without any mechanism to check the veracity of a statement, the spectrum of the Order would be disastrously wide and vague which would eventually lead to violation of the fundamental right to freedom of speech.
Violation of Right to Fair Comment
A substantial amount of provisions inculcated in the Order are pre-censorship provisions. Pre-censorship or prior restraint provisions is a type of censorship usually imposed by the government or the administration which proscribes a particular instance of expression;[14] like in the present case prohibiting circulation of ‘distorting facts’ via social media platforms in the form of images, memes, videos, audio clips etc., as is clear from the first clause of the Order. Although, in Babulal Parate v. State of Maharashtra,[15] it was held that pre-censorship orders are constitutional in nature. Nevertheless, in Brij Bhushan & Anr. v. The State of Delhi,[16] it was held that the imposition of pre-censorship on a journal is a restriction on the liberty of the press which is an essential part of the right freedom of speech and expression declared by Article 19(1(a). Moreover, in the case of Express Newspapers v. Union of India,[17] the court held that if a law puts prohibitive burdens on the press that would restrict its circulation, penalise its freedom of speech, prevent newspapers from being started and compel the press to seek Government aid, it would violate the Art.19(1)(a). Furthermore, in Anuradha Basin v. Union of India,[18] the SC held that the restrictions put by an order for imposition of §144 of CrPC must be reasonable in nature. The Supreme Court, in Modern Dental College & Research Centre Ors. v. State of Madhya Pradesh & Ors.,[19] set forth 4 particular grounds of proportionality to ensure this reasonability – i) Legitimate Goal, ii) Suitable mean to achieve the objective, iii) No availability of an alternative, iv) No disproportionate impact. These four components need to be satisfied individually in order to make any limitation constitutionally permissible. While scrutinizing the provisions of the Order under the aforementioned four heads, it can be concluded that the Order fulfils the first criteria as the government aims to make their course free of frivolous huddles in order to tackle the pandemic effectively. However, the Order fails to meet the fourth criteria as it overreaches this objective and restricts bona fide and honest criticism of government actions and inactions. The Order prohibits citizens from criticizing the state actions, however, the SC in S. Rangrajan & Ors. v. P. Jagjevan Ram & Ors. and in The Secretary, Ministry of Information & Broadcasting v. Cricket Association of Bengal &Anr., held that “in a successful democracy, the state cannot prevent open discussion and criticism, however hateful, towards its policies its incapacity”.[20] Therefore, the restrictions imposed by the Order violate the right to fair comment and criticism.
Imposition of Individual Liability
Furthermore, clause 5 of the Order[21] imposes individual responsibility upon a group administrator. This provision is argued to be unreasonable and arbitrary. No social media platform empowers the administrator to allow or disallow individuals from sharing what he or she desires to share. Hence, the Order imposes vicarious and prejudicial liability upon the administrator for something that he/she did not abet nor had the power to prevent.In furtherance, the Order also imposes the responsibility upon the administrators to review and report the prohibited information that is shared on the group to the police.[22]However, the Order does not provide any mechanism or definition to the administrators to determine what material would be considered as prohibited which further adds to its ambiguity as the definition of ‘prohibitory’ differs from person to person. The powers as provided to the administrators under Clause 6 of the Order[23] cannot be utilized under §144 of CrPC. The SC in Ramanlal Bhogilal Patel v. N.H. Sethna,[24] explicitly stated that the power under this section can be utilized only to impose preventive measures. Therefore, the concerned authority has exceeded the mandate of §144 of CrPC.
Conclusion
The government is the representative of the people and it is as important to criticize its wrongful actions as it is to appreciate its good policies. A critical analysis of the recent Order passed by the Mumbai Police makes the stand of the government to prevent unnecessary obstructions in containing the pandemic clear. The intention of the government behind the Order is non-malicious as long as they wish to prevent chaos among the masses caused due to circulation of misinformation during this pandemic. The situation of a thousand labourers gathering at the Bandra railway station upon receiving a fake call that the government is running a ‘ShramikSpecial’ train which would help them commute to their native places,[25] was a deadly example to the government about how catastrophic fake news can be.
However, the impositions backfired as an encroachment upon the fundamental right of freedom and expression. A study of the aforementioned judgments of the SC makes it clear that the restrictions on the freedom of speech and expression are to be clearly stated so that its adherence is also clear to the people and people do not unwillingly or unknowingly call for any criminal liability by simply forwarding a text message on a social media platform. An analysis of the Order makes it lucid that the order is ambiguous as it fails to acknowledge the meaning of ‘facts’ and ‘information that distorts facts.’ The rights of the citizens are being compromised when the non- observance of the provisions is criminalized and innocent people are penalised. Thus, the Order fails to meet the unambiguity standards. Therefore, even though the intention behind it may be bona fide, its ambiguous text and possible implementation and innocent arrest provisions raise several doubts.
The authors, Shruti Gupta and Rounak Doshi, are currently law students at the National Law Institute University (NLIU), Bhopal.
[1] Kate Kelland, Fake news makes disease outbreaks worst, study finds, Reuters, https://in.reuters.com/article/health-fake/fake-news-makes-disease-outbreaks-worse-study-finds-idINKBN20807A, last seen on 21/06/2020.
[2] Coronavirus doctor’s diary: ‘Fake news makes patients think we want them to die’, BBC, https://www.bbc.com/news/health-52337951, last seen on 20/06/2020.
[3] DevjyotGhoshal and SubrataNagchoudhury, A Coronavirus Death In Kolkata Shows How Vitriol And Fake News Can Fan Paranoia, Huffpost, https://www.huffingtonpost.in/entry/coronavirus-death-kolkata-fake-news-violence_in_5e815e09c5b6cb9dc1a2abdf, last seen on 21/06/2020.
[4] Order under Section 144 of CrPC by Mumbai Police Commissioner, CP/XI(6)/144/(Prohibitory Order)/2020, SCRIBD, https://www.scribd.com/document/463180132/Mumbai-prohibitory-orders-May-25#fullscreen&from_embed, last seen on 24/06/2020.
[5] S. 144, Code of Criminal Procedure, 1973.
[6] Order under Section 144 of CrPC by Mumbai Police Commissioner, Clause 4(i), CP/XI(6)/144/(Prohibitory Order)/2020, SCRIBD, https://www.scribd.com/document/463180132/Mumbai-prohibitory-orders-May-25#fullscreen&from_embed, last seen on 24/06/2020.
[7] Order under Section 144 of CrPC by Mumbai Police Commissioner, Clause 3, CP/XI(6)/144/(Prohibitory Order)/2020, SCRIBD, https://www.scribd.com/document/463180132/Mumbai-prohibitory-orders-May-25#fullscreen&from_embed, last seen on 24/06/2020.
[8] S. 54, The Disaster Management Act, 2005.
[9] S. 66D, The Information Technology Act, 2000.
[10] S. 153A, 295A, 505(1), The Indian Penal Code, 1960.
[11] Kartar Singh v. State of Punjab, (1994) 4 SCC 134; Clarity in Criminal Statutes: The Void-for-Vagueness Doctrine, Cornell Law School, https://www.law.cornell.edu/constitution-conan/amendment-14/section-1/clarity-in-criminal-statutes-the-void-for-vagueness-doctrine, last seen on 22/06/2020.
[12] Order under Section 144 of CrPC by Mumbai Police Commissioner, CP/XI(6)/144/(Prohibitory Order)/2020, SCRIBD, https://www.scribd.com/document/463180132/Mumbai-prohibitory-orders-May-25#fullscreen&from_embed, last seen on 24/06/2020.
[13] Shreya Singhal v. Union of India, AIR 2015 SC 1523 (para 8).
[14] Michael Cooper, The Playing-card, J. Int. Playing-Card Soc. (2005).
[15] Babulal Parate v. State of Maharashtra, MANU/SC/0155/1961 (para 26).
[16] Brij Bhushan v. The State of Delhi, MANU/SC/0010/1950 (para 25).
[17] Express Newspapers v. Union of India, MANU/SC/0157/1958 (para 150).
[18] Anuradha Basin v. Union of India, AIR 2019 SC 1031 (para 134).
[19] Modern Dental College & Research Centre Ors. v. State of Madhya Pradesh & Ors., AIR 2012 SC 1266 (para 53).
[20] S. Rangrajan&Ors. v. P. Jagjevan Ram &Ors., (1989) SCC 2 574 (para 38); The Secretary, Ministry of Information & Broadcasting v. Cricket Association of Bengal &Anr., AIR 1995 SC 1236.
[21]Order under Section 144 of CrPC by Mumbai Police Commissioner, CP/XI(6)/144/(Prohibitory Order)/2020, SCRIBD, https://www.scribd.com/document/463180132/Mumbai-prohibitory-orders-May-25#fullscreen&from_embed, last seen on 24/06/2020.
[22] Supra note 20 (para 6).
[23] Ibid.
[24] Ramanlal Bhogilal Patel v. N.H. Sethna, MANU/GJ/0102/1970 (para 1).
[25] Ashwin Aghor, Bandra Station Chaos: Marathi channel’s fake news creates panic among migrant workers, https://thenews21.com/bandra-station-chaos-marathi-channels-fake-news-creates-panic-among-migrant-workers, last seen on 24/06/2020.
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