Fundamental Freedoms And The Extent Of Permitted Restrictions: Analyzing Maharashtra Gag Order During Covid-19

While the object behind this Order may be justified, the wide amplitude of restrictions imposed therein have cast a shadow of doubt on its legality. The temporary restrictions imposed are vague, exceed the object which they seek to achieve, and consequently threaten the right to freedom of speech and expression guaranteed by the Constitution of India under Article 19(1)(a).

Vague Prohibitions Restrict Freedom of Speech

The phrase 'distorting facts' suffers from the vice of vagueness, as its contours are not clearly defined. It is a cardinal principle of law that a penalizing provision should give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that she may act accordingly [See Kartar Singh v. State of Punjab (1994) 3 SCC 569]. The Order penalizes the dissemination of information which "distorts facts" without actually defining "information that distorts facts" or "facts". Without a precise definition, any bona fide contrary opinion on a particular issue, could be viewed as 'distorting', without knowledge about what the authority believes to be a 'fact'.

Additionally, the Order offers no guidance to the authorities to decipher the difference between information that 'distorts a fact', and information which presents a contrary opinion/interpretation on that fact. This would result in arbitrary enforcement of this restriction, as the meaning of circulated information may differ from person to person. For example, an innocent person forwarding a message/ video about an anti-COVID 19 drug, suggested by one research organization, may be viewed as a distortion by another person who has received and believes the opinion of a different research organization.

As a person would continuously be in the grey about whether or not the information she is distributing distort facts, it would lead to a chilling effect on her right to freedom of speech and expression. A similar situation arose in Shreya Singhal v. Union of India (2015) 5 SCC 1, where Section 66A of the Information Technology Act, 2000 was scrutinized due to the vagueness of its prohibitions. While striking down the impugned Section, the Supreme Court held that "Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net. Such is the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total."

In our opinion, without a proper mechanism available to check the veracity of facts, or a temporary but precise criterion of what constitutes a 'fact' for the purposes of this Order, the restriction unreasonably violates the right to freedom of speech and expression of the citizens of Maharashtra.

Right to Fair Comment and Criticism

The remaining restrictions are in the nature of pre-censorship orders, which prohibit speech of certain nature and about certain issues till the Order stays in effect. Pre-censorship orders have previously been upheld as constitutional in emergent circumstances [See Babulal Parante v. State of Maharashtra AIR 1961 SC 884]. However, the restrictions imposed under a Section 144 Order to amount to a 'reasonable restriction' must qualify the principles of proportionality, and thereafter apply the least intrusive measures (See Anuradha Bhasin v Union of India, W.P (C) NO. 1031/2019, Supreme Court judgment dated 10.01.2020)

The restrictions imposed on the Press and individual's rights to fair comment and criticism are disproportionate to the object stated in the Order. To test the proportionality of an administrative Order, one must analyze if (a) the measure restricting a right has a legitimate goal; (b) the restrictions are a suitable means of furthering this goal; (c) there is not any less restrictive but equally effective alternative; and (d) the measure does not have a disproportionate impact on the right-holder [See Modern Dental College and Research Centre and Ors. vs. State of Madhya Pradesh and Ors. (2016) 7 SCC 353].

If the Order in question is analyzed in terms of the four-part test laid down in the Modern Dental College judgment, it seems to struggle to fit within most requirements.

• Legitimate Goal: In our opinion, it cannot be denied that an unprecedented global crisis has been created by the outbreak of COVID 19, and the need to curb it is a legitimate objective of the state. Thus, the Order meets this requirement.
• Suitable/Rational Connection: While misinformation may be an impediment to awareness and may cause panic, containing the spread of COVID - 19 is equally related to protecting those in the field, ensuring social distancing, and having infrastructure and facilities available in sufficient amounts to efficiently handle the cases. In our opinion, the Order prohibits critical and bona fide reporting of government action and inaction, which does more harm than good.

Critical reporting and dissemination of information about State Government mismanagement aids the fight against COVID – 19. The Supreme Court and several High Courts in their respective States have taken suo moto cognizance of news items that critically reported about the migrant labour crisis, the ineffectiveness of morgues and hospitals, and unavailability of essential services. Thus, curtailing the right to make a fair comment and criticize the State Government is counterproductive to the object of the Order.

• Equally Restrictive Alternative: These restrictions seem to be already governed by Sections 153A, 295A and 505 of the Indian Penal Code, 1860. These provisions enable the State to prosecute offenders for hate speech and statements that conduce public mischief. Therefore, in light of the equally restrictive alternative, there was no need for such stringent restrictions to be imposed under a Section 144 Order.
• Disproportionate Impact: The content of the Order seems to cast broad restrictions on citizen's freedom of speech and expression. It is important to note that the State cannot prevent open discussion and expression, "however hateful, towards its policies, or criticism towards the incapacity of the government." [See S. Rangarajan and Ors. vs. P. Jagjevan Ram and Ors. (1989) 2 SCC 574]. The Supreme Court has held that "A successful democracy posits an aware citizenry. Diversity of opinions, views, ideas, and ideologies is essential to enable the citizens to arrive at an informed judgment on all issues touching them" [See Secretary, Ministry of Information and Broadcasting, Govt. of India and Ors. vs. Cricket Association of Bengal and Ors. (1995) 2 SCC 161)]. As the Order prohibits citizens from making any statement that critiques the government, it also impacts the right of citizens to receive all information, and understand the diversity of opinion. A restriction of this magnitude, to curb the spread of the virus, is disproportionate and attacks the grundnorm of a democracy.

Though the object of the Order highlighted many positives and necessary goals, the restrictions imposed on the right to freedom of speech and expression by the Order appear to be disproportionate.

Personal Liability of Group Administrators

The Order penalizes administrators of messaging groups on social media platforms for actions they cannot be prevent. According to paragraph 5, an administrator of a group is personally liable, if she "allows" any member of the group to disseminate information which is prohibited. However, no social messaging application empowers the administrator to 'allow' or prevent another member of the group from sharing what she desires. Therefore, if this direction is enforced, an administrator of a group will be prejudicially & vicariously prosecuted for an act which she has not abetted, nor has the power to prevent.

Further, the Order obstructs free dissemination of information by casting an impractical duty on group administrators. According to Paragraph 6 of the Order, administrators are bound to review, scrutinize and report prohibited information to the police distributed by group members. However, the order offers no mechanism or guidelines to administrators to assess an information as fake or 'distorting facts'. In absence of such a mechanism, this direction could result in hyper - sensitive administrators, who curtail the distribution of all information to avoid prosecution. This would result in an unreasonable restriction on the right to freedom of speech on social media platforms.

It is also interesting to note that the Order has cast a positive duty on group administrators to report members violating the provisions of the Order. Such a mandatory direction is not permissible within the scope of Section 144 of the CrPC. Under this Section, the concerned authority can only pass a preventive order. [See Ramanlal Bhogilal Patel v. N.H. Sethna 1971 Cr.L.J, 435]. Applying this principle, by imposing a positive obligation on the administrator, the concerned authority has exceeded the mandate of Section 144.

Conclusion

Recently, the  High Court of Gujarat made a few observations on the right to comment & criticise the State Government during the COVID – 19 outbreak. The Order has acknowledged that cooperation, understanding, and constructive criticism are powerful tools to fight the pandemic. However, in order to deter politicization of the virus, the Order cautions State citizens that "those who cannot extend their helping hand in this difficult time have no right to criticize". In our opinion, a statement as broad as the one above is problematic. Deterring political opportunism or destructive criticism is important, but the right to criticize the government is a democratic right of every citizen, whether they are in a position to personally help or not.

In the unprecedented circumstances being faced by not just India but the world right now, governments are being tasked with problems in every sphere of administration related to COVID -19. It is understandable in such circumstances that governments would expect support from their citizens in combatting the disease. However, there is a duty on the State of Maharashtra to balance the rights of its citizens while imposing restrictions upon their fundamental freedoms. Free communication, while posing a challenge, serves as an important tool in preserving democracies. It provides constructive criticism which may be used to improve the state of affairs and better-equip the state in dealing with the crisis. From curbing the rights of the citizens to comment on the action of their government to imposing obligations upon Group Administrators to report content, the State appears to have teased the limits of reasonable restriction on its citizens' right to free speech. The Order has a ring of an authoritarian directive that infringes on people's constitutional rights and disallows them from voicing their expectations to the very government they elected.

Views are personal only

(Sukanya Singh is an Advocate practicing in the Supreme Court of India who recently completed her Masters in Law from Cornell University, New York. Shivek Sahai Endlaw is a penultimate year student pursuing his B.A.L.LB (H) from Amity Law School Delhi, GGSIPU)