Public criticism is indispensable to the functioning of government institutions and a ‘culture of open dialogue’ is requisite for democracy. It is not erroneous to say that dissemination of fake news and incorrect information over social media platforms regarding the actions of the government, creates chaos and bewilderment among the people and incites mistrust towards the government functionaries. In the light of the same fact, the Mumbai Police Commissioner and Executive Magistrate, on 23rd May 2020, issued an order stipulating a criminal action under Section 188 of the Indian Penal Code against those spreading misinformation about the measures taken by the state. However, as contended in the petition filed by Mr Mangal Prabhat Lodha (an MLA belonging to the opposition BJP), this is a restrictive order criminalizing the healthy criticism of the government which is necessary for a democracy.
Ever since 1992, after widespread communal violence broke out in the city, Mumbai has seen multiple prohibitory orders, and almost all of them were imposed on the anticipation of the threat to life and property in the city without any specific situation being mentioned. In a similar fashion, the present prohibitory order promulgated under Section 144 of the Criminal Procedure Code has also been passed with no guidelines attached for its implementation process for the authorities and is being condemned at all levels.
IS THE GAG ORDER IMPOSED UNDER SECTION 144 ‘CONSTITUTIONAL’?
The gag order imposed in the city cannot be justified on the pretext of the current pandemic situation or to deal with animosity prevailing in the State. The order not only threatens our fundamental rights but also causes a chilling effect on the freedom of speech in society. It threatens the citizens of the country with a legal suit and crushes the opinion of people who dare to speak against the government which is definitely inconsistent with the law, as every individual has a right to dissent and disagree because it is both a constitutional right and a human right.
Perusing the cardinal principle of proportionality laid down in the case of Anuradha Bhasin v. Union of India i.e. ‘the Jammu Kashmir internet shutdown case’, it is obligatory on part of the magistrate to maintain a balance between the restrictions imposed and the rights of the citizens. The restrictions can be placed only after analyzing their impact on the fundamental rights and with great responsibility. However, disregarding the same, the present gag order in Mumbai blindly intends to cease fair criticism and stop the common citizens from pointing out the fallacies in the governmental actions. So, it is not right to call this order a preventive one as it fails to adhere to the test of proportionality.
The Gag Order imposed by the authorities failed to satisfy the doctrine of imminent lawless action. In the Brandenburg v. Ohio case, the ‘clear and present danger’ test was expanded and the test of imminent lawless action was laid down, which has also been used in numerous Indian Supreme Court judgements and stands as the prevailing standard to determine protectable speech in the country. According to this test, the constitutional guarantee of free speech and free press do not allow a state to forbid or proscribe the use of subversive advocacy except in a situation where the advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. The word ‘imminent’ must be construed effectively. The situation in Mumbai cannot be said to cause imminent lawless action. Mumbai was not the only city in the claws of pandemic and the government could have focused on controlling the situation rather than imposing such a flawed order. Curbing the opinions and of the people was not the solution to avoid mistrusts amongst government functionaries.
The gag order imposed in the city is prima facie illegal as it is beyond the scope of Section 144 of CrPC. The said section does not grant unbridled power to the magistrate to impose such a wide amplitude of restrictions on the citizens. As propounded in the landmark case of Anuradha Bhasin, Section 144 cannot be used as a weapon to thwart the legitimate expressions and grievances in a democracy. It was also held that the repetitive invocation of orders under this section would be an abuse of power. But recently this March, Mumbai witnessed the imposition of an order issued under Section 144 to restrain any kind of demur against the CAA and NRC. In 2019 after the Ayodhya verdict also, the State government invoked Section 144 in Mumbai, prohibiting the grouping of more than four people in an area. This elucidates that there have been multiple instances where Section 144 has been applied like a straitjacket formula by the government in a guise to save themselves from criticism.
The order of 23rd May prohibits all individuals from criticizing the government irrespective of whether the governmental measures are capable or not in controlling the outbreak and curbing the menace of the virus. Apart from rejecting the diversity of opinions, the restrictions imposed through this order also endanger the grundnorm of democracy. The order is no way behind in causing a chilling effect on the exercise of the ‘freedom of speech and expression’. It infuses a fear of being sued as a consequence of expressing an opinion freely on any public issue. Though the doctrine of chilling effect has no foothold in India, the Hon’ble Supreme Court in S. Khushboo v. Kanniammal and time and again in other judgments have emphasized that a law should not be exercised in a way that causes a chilling effect on the freedom of speech and expression. The intimidation of prosecution is sufficient to restrict the citizens from criticizing and speaking the truth about the functioning of government, which is indispensable in a democracy.
Supporting the administration of one’s country and its judgement is one aspect of keeping the wheels of government moving while pointing out the flaws and being vigilant during the implementation of the actions of the government is also needed in a democracy. In this unprecedented crisis, it is clearly understood that each step of government is likely to suffer from a bombardment of negative and deprecatory comments, but silencing the common men from expressing their opinion is not acceptable and this is clear abnegation their fundamental rights.
Criticism is the quintessence which keeps democracy alive and helps the government to improve their strategies in dealing with any conundrum. But unfortunately, the Maharashtra government failed to acknowledge the voice of its citizens by imposing an order which suffers from a gamut of flaws and lack of constitutionality. The order was effective in Mumbai from 23rd May to 8th June. The petition was listed before a Division Bench of the Bombay High Court which had adjourned the matter and sought to know whether the Mumbai police intended to extend this order or issue a new order. Though the order is now not effective in the Mumbai city, the repetitive imposition of such orders has resulted in fear and hatred towards the government functionaries.
ABOUT THE AUTHORS
Shivi is a third-year student from Institute of Law, Nirma University. Her area of interest includes Constitutional Law and Intellectual Property Rights. She can be reached at email@example.com.
Vaibhav is a third-year student from Institute of Law, Nirma University. His area of interest includes Constitutional Law, Arbitration, and Public International Law. He can be reached at firstname.lastname@example.org.