This article is written by Sanjana Jain, student, Guru Gobind Singh Indraprastha University, Delhi. The author talks about the Gag order issued by Mumbai Police on May 23, 2020, and how this order affects the right of freedom of speech of people of the State.
Table of Contents
The Supreme Court itself enabled the Judicial Gag orders given by the courts. In the case of Sahara India Real Estate Corp. Ltd V. the Securities and Exchange Board of India, 2012 the Supreme court held that a “postponement order” can be granted for temporarily stopping the media from reporting about trial if publishing any news by media related to it would “create a real and substantial risk of prejudice to the administration of justice or the fair trial”. The court framed this by making a balance between two competing rights i.e the right to free speech, and the right to a fair trial. The court after observing that publishing news of court trials by media jeopardizes a fair trial held that “prior restraint” on reporting of court trial could be imposed. But two problems come up with this:
Firstly, the thinking that “media trials” prejudice the fair trial makes sense in a jury system, where whether the person is guilty or innocent is decided by a jury containing twelve members who do not have any kind of specialized legal training. In India, however, jury trials have been abolished more than 40 years ago, and it’s now judges who decide the cases on their own. Judges are not only supposed to apply the law but also must have relevant training and skills to apply the law regardless of whatever public outcry that shall exist outside the courtroom.
Secondly, and most importantly, the 2012 judgment fails to mention the cases in which these exceptional “postponement orders” could be granted, and also the judgment failed to specify the time period for which these “postponement orders” could be passed. By using the words such as “reasonable” and “proportionate”, the judge let the door wide open for the future courts to issue Gag orders, and protect themselves from public reporting and their criticism. Thus unclear interpretation is needed for this judgment and if it’s not done then the probable abuse of this judgment could transform this into a “gag writ”. Recent orders of the CBI courts indicate that this is exactly what has happened.
Free speech- limitations on a fundamental right
Article 19(1)(a) guarantees citizens the freedom of speech, whereas Article 19(2) impose “reasonable restrictions” in the interests of (i) the sovereignty (ii) the state security (iii) public order; (iv) decency or morality; (v) defamation; or (vi) incitement to an offence. Speech in India can be restricted because of its consequences, that it may lead to violence, but also because of the speech’s content if the meaning conveyed is deemed legally objectionable. The State only restricts the speech that directly leads to violence. Any restriction on speech must have a close connection with a specific headset out in Article19 (2). The government cannot restrict speech on any other head other than heads under Article 19(2).
What is the Gag order all about
The Mumbai Police Commissioner has issued a Gag order on May 23, 2020. The gag order was made and signed by the deputy commissioner of Mumbai Police, Mr Pranaya Ashok, u/s 10 Subsection (2) under the Maharashtra Police Act, 1951. This Gag order was made to prevent danger to human life, and also this order has listed several problems faced by the state including the dissemination of fake information, incorrect information, and other objectionable content on many social media platforms like Whatsapp, Facebook, Instagram, etc. Thus this Gag order issued on May 23, prohibits any person from:
- Disseminating information through various social media platforms like Whatsapp, Twitter, Facebook, Tiktok, Instagram, etc.
- Derogatory and discriminatory towards a particular community.
- Causing panic and confusion among the general public, or
- Inciting mistrust towards government functionaries.
The order also states that people who are “Admin” on any social media platforms “shall be personally responsible for any such incorrect information being transferred in a group administered by them”. It shall be the responsibility of all the persons who are “Admin” on any social media platform to report any such malicious, incorrect, or derogatory information shared in a group by a member to the police immediately.
Thus this order will be valid with effect from 25th May 2020 to 8th June 2020 unless withdrawn earlier.
Reason for bringing this Gag order
Maharashtra Government brings this order as it has been observed by the Maharashtra Government that in the form of videos, messages, images or memes, audio clips, there was widespread dissemination of fake news, incorrect information, misinformation, and other such objectionable content over the internet by the help of many social media platforms like Facebook, Whatsapp, Instagram, etc.
It’s been seen by the Government that such content is causing among the public panic and confusion, and because of this, the public is not trusting government functionaries and their efforts to control the Covid-19 pandemic and also this has created bitterness towards various communities.
Therefore it was considered expedient by the Maharashtra government to issue a prohibitory order for restricting any dissemination of incorrect information through various Social media platforms like Whatsapp, Facebook, Instagram, etc.
Is criticizing the State government a crime now
Constructive criticism of the States is a democratic right vested in the citizens through the Constitution. In a democratic country like ours, asking questions from the politicians is the fundamental right of citizens, but most of the politicians are trying to curb this right by making it an offence.
In the recent anti-CAA protest, the people of the country were against the bill, so they were criticizing the bill, as they have the fundamental right to criticize it, but they were prevented from using their right, and were charged for the sedition by the ruling government in name of the public nuisance. Such an action endangers the idea of democracy.
In the recent case of Anuradha Bhasin V. Union of India, which is popularly known as the Jammu and Kashmir internet shutdown case, the Supreme court has explained the principle of proportionality, which says that:
Every authorized person shall apply the least intrusive measure after making the balance of rights and restrictions based on the principle of proportionality. Justices N.V. Ramana, R. Subhash Reddy, and B.R. Gavai have also observed that excess orders under Section 144 would lead to an abuse of power.
Thus, the guidelines given by the apex court in the above case were not taken into consideration while passing this arbitrary order, and the person who was authorized to make a balance between the rights and restrictions fails to do so and hence it solely restricts the right of citizens. Hence the order passed by the Maharashtra Government is disproportionate as per the principle of proportionality laid down in the case of Anuradha Bhasin V. Union of India.
The constitutional validity of the order in a democratic India
The constitutional validity of the order was challenged by BJP MLA Mangal Prabhat Lodha by filing a petition in the Bombay High Court. The Gag order specifies that criminal action will be taken against the “Admin” on any social media platforms if any member of the group disseminates any incorrect information in a group administered by “Admin”. The order also lays down that “Any person who contravenes this Gag order will be prosecuted under Section 188 of IPC”.
In the petition, he has said that the Gag order is ” vague and is creating panic among the public and this order is also affecting their right of freedom of speech “. He says that the order suffers from vagueness, as none of the restrictions imposed by the order can be justified.
Impact on fair trials
In Sahara India Real Estate Corp. Ltd V. the Securities and Exchange Board of India, case the Supreme court held that a “postponement order” can be granted for temporarily stopping the media from reporting about the trial if publishing any news by media related to it would “create a real and substantial risk of prejudice to the administration of justice or the fair trial”.
It is also said in this case that if an accused is apprehended based on the information published by the media, then it is a violation of his / her rights under Article 21 of the constitution to a fair trial. Also, he/she shall be entitled to go to an appropriate writ court and seek an order of postponement. The court could grant such preventive relief after maintaining a balance between two rights i.e rights to a fair trial and freedom of speech.
Need of the hour during a pandemic
When a comment came in a newspaper named daily Lokmat, which is a newspaper owned by the leader of Congress and former minister Rajendra Darda. Which says that ” Maharashtra is suffering from the worst situation regarding Pandemic in the country.” The Maharashtra Government came under lamplight, especially on Social media.
Rather than rectifying where they lacked in preventing the spread of coronavirus, they took a shortcut of curbing the critics by issuing a Gag order. On 23rd May the government issued a gag order that effectively restricts anyone from commenting on the state government’s functioning and hence by issuing this order they curb the criticism.
After the Gag order, the Maharashtra Cyber department has recorded 419 offences across the state so far for the dissemination of fake news, rumours on social media on May 26 only. The classification of cases is as follows: 175 cases pertained to WhatsApp, 165 to Facebook,20 to Tiktok,8 to Twitter, 4 to Instagram, and 47 for misusing audio and Youtube video clips” according to the government’s release. However. These cases are of those posting content criticizing the government.
Tracing the line and growing trend
In 2012, the supreme court held that if publishing news related to trial creates a risk of prejudice to the administration of justice or the fair trial, the court could grant a “postponement order”. The court framed this by making a balance between two competing rights i.e the right to free speech, and the right to a fair trial. The court after observing that publishing news of court trials by media jeopardizes a fair trial, it held that “prior restraint” on reporting of court trials could be imposed.
The Indian judiciary has an inconclusive relationship with free speech, from the constitutionality of sedition in 1962, to confirm the law of criminal defamation in 2016. However, it has gone further than simply refusing constitutional challenges to the state’s speech restrictive laws. Travelling beyond the boundaries of the constitution, it has begun to compel the speech of its own accord, without even considering the parliamentary law on the subject. Recent examples are when the Bombay high court orders deletion of some scenes from Jolly LLB 2 and the order of the supreme court directing to play the national anthem in the cinema halls before screening of movies.
Other ways to handle misreporting
It’s mostly seen that the media reports court proceedings inaccurately, just to make a good headline, the media publishes judicial observations out of the box, and sometimes there is an outright misquotation. In fact, these are the reasons given by many courts in order to justify the gag order. However, there are laws to deal with this type of misreporting like the contempt of court act. Another way to deal with this type of misreporting is by making audio or video of court proceedings available to the public. By these ways only we will be able to handle misreporting.
The gag order issued by the deputy commissioner of Mumbai police is to prohibit the people of the state from Inciting mistrust towards government functionaries, disseminating incorrect information, or causing among the general public panic and to prevent the spread of the COVID-19 virus, thus this order is restricting the fundamental right of citizens to criticize the functioning of the state government.
The Maharashtra Government is using the gag order as a tool to prevent the people from criticizing the government by taking away their rights. This order of the Maharashtra government is vague as they are trying to take away the citizens right under the veils of public health. Hence this order is unconstitutional.
As the gag order passed by the Mumbai Police violates the basic right of freedom of speech and expression, it is unconstitutional and thus it cannot be enforced by the state. If we now don’t criticize the government for its false steps and measures then it is now we give them the arbitrary power to take all measures without thinking about the fundamental rights of citizens.
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