The spread of fake news and misinformation during the pandemic has been unprecedented. Governments have been prompted to take measures to curb this spread in order to quell panic amongst the public. One such measure was taken by Mumbai Police by promulgating a prohibitory order under Section 144 of India’s Code of Criminal Procedure (CrPC). This post aims to analyze the imposition of such an order in light of the effect on freedom of speech and expression. 

The right to freedom of speech and expression is a fundamental right guaranteed by the Indian Constitution under Article 19(1)(a). There is no doubt that this right is one of the hallmarks of a democracy. However, it is not an absolute right. Article 19(2) lists certain reasonable restrictions, which include, inter alia, protecting public order. Section 144 of the CrPC gives the Magistrate the power to issue an order in urgent cases of nuisance or apprehended danger with a view to protecting public tranquility. 

As was upheld in the case of Anuradha Bhasin v. Union of India, any restriction under Article 19(2) of the Constitution must satisfy three requirements:

1. It should be provided by law;
2. It should be in the interests of sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offense; and
3. It should be reasonable. 

An order issued under Section 144, to restrict freedom of speech and expression is provided by law as it is issued by a competent authority in keeping with Article 13(3) of the Constitution. It is in the interest of protecting public order, as the terms “public order” and “public tranquillity” have been interpreted synonymously by the Supreme Court; disturbances of public tranquillity, riots, and affray lead to the subversion of public order unless they are prevented in time. The main validity of the order can be questioned where reasonableness is concerned, and the same has to be justified adequately by the government. 

In the present instance of the order being imposed by the Mumbai government, the reasonableness is justifiable in view of the material facts during the pandemic. Apprehending actual public protests due to the spread of incorrect, fake, derogatory, or discriminatory information through social media platforms, the government sought to regulate this spread through the order to protect public health and tranquility. This was a necessary measure undertaken to prevent panic and confusion amongst the public. Hence, the government was justified in passing the order. 

Reasonableness can also be supplemented with the test of proportionality which comprises of four parts: 

1. The restriction should have a legitimate goal (legitimate goal stage);
2. Restrictions must be a suitable means of furthering this goal (suitability or rational connection stage);
3. There should not be a less restrictive but equally effective alternative (necessity stage); and
4. The restriction must not have a disproportionate impact on the right-holder (balancing stage).

All these four criteria were satisfied in the present case. The order promulgated by the Mumbai government definitely had a legitimate goal of protecting public order. By regulating the spread of fake news and misinformation on social media platforms which had already led to an actual public gathering prior, the order was a suitable means of seeking to protect public health and tranquility amidst the pandemic. In view of the March 2020 judgment of the Supreme Court in Alakh Alok Srivastava v. Union of India, the need to regulate freedom of speech and expression on social media platforms during this “infodemic” was justified. The order was also the least restrictive measure the government could have taken. There was no blanket ban on the internet or social media platforms; only regulation of free speech. All of this proves that there was no disproportionate impact on the right-holders as well. Regulation of the right to freedom of speech and expression in public interest cannot infringe upon Article 19(1)(a), especially as sometimes, a private right must give in to the public interest.

Despite the fact that the restrictions contained in the imposed order came were reasonable, many people still criticized the actions of the government by branding it as “a gag order”. Some of these criticisms are addressed below.

Firstly, social media platforms act as important channels through which dissemination of information happens at a rapid rate. Citizens may not only express their opinions but also denounce certain actions of the government through these channels. If the order was promulgated only to allow the dissemination of government verified information, then this would take away the opportunity from citizens to gain holistic information through other mediums. One example is of independent journalists and freelancers who use their own social media accounts to provide information to the public outside of state-controlled media outlets. This information is contrary to the government narrative. In this way, the citizens’ voice of dissent acts as a good balance to keep governmental power in check. 

Secondly, the order has been found to be too vague in its formulation. It fails to define what “misinformation” means and constitutes. Another particular provision targeted by dissenters in this regard reads as, “Inciting mistrust towards government functionaries and their actions taken in order to prevent the spread of the COVID-19 virus, and thereby causing danger to human health or safety or a disturbance of the public tranquillity.” The order does not specify as to what kind of information can be deemed to cause distrust against government functionaries or their actions. In view of the judgment of the Supreme Court in the case of Shreya Singhal v. Union of India, such an order can be struck down on the grounds of vagueness if its prohibitions are not clearly defined. 

Thirdly, any order under Section 144 should be imposed only in light of clear and present danger, and not merely where there is a “likelihood or possibility” of threat. Critics have argued that there were no exigent circumstances present which would have justified the passing of such an order. Moreover, freedom of speech and expression should not be restricted unless it leads to imminent lawless action. This has been elaborated upon even in Shreya Singhal, which distinguishes between “discussion, advocacy, and incitement”, thereby stressing that freedom of speech should be curbed only when it leads to incitement. 

Fourthly, the order states that “All persons designated as ‘Admin’ on messaging and social media platforms, either by self or by allowing any member of the group, shall be personally responsible for any such information being disseminated from a group administered by them.” This provision may be arbitrary, which can violate the principles of equality, as admins might not even be aware of every single message that might be posted on the group. This stands in addition to the fact that different social media platforms give a different range of regulatory powers to the admin. 

Lastly, critics have argued that the order was not the least intrusive restriction as several provisions already deal with the spread of panic and fear amongst the public. Particular references can be made to Section 54 of the Disaster Management Act 2005, and Section 505(1)(b) of the Indian Penal Code. Thus, the imposition of a separate order under Section 144 of the CrPC was not necessary. 

The validity of the order needs to be viewed in the context of protecting public order, health, and tranquility during an unprecedented pandemic which has led to the death of millions of people. The government cannot be blamed for seeking to safeguard public health at a time of emergency, especially when the restrictions given within the order were reasonable, proportionate, and not overly intrusive. When we view the imposed order from such a perspective, the criticisms against the order do not stand. Additionally, the government is the one working on the ground to remedy the situation and is also the one in charge of maintaining public order. Seeing that it is entrusted with such important responsibilities, it needs to be allowed certain leeway in assessing a situation and acting accordingly. As long as the government adequately balances the freedom of speech and expression and the restriction upon the same, it does not irrationally interfere with this right. Therefore, the promulgation of the order was justified as it was only a regulation of free speech and not a blanket ban on this right. 

Akshita Tiwary is a 3rd year law student at Government Law College, Mumbai, India. She is a staff writer at JURIST. 

Suggested Citation: Akshita Tiwary, Section 144 and the Pandemic: A Look at Freedom of Speech in Mumbai, JURIST – Student Commentary, October 14, 2020, https://www.jurist.org/commentary/2020/10/akshita-tiwary-pandemic-freedom-of-speech/.

This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org.