WHEN SILENCE ISN’T GOLDEN: HOW THE MUMBAI POLICE’S GAG ORDER

IS PER INCURIAM

Introduction

In 2013 when Shri Balasahab Thackeray died, Mumbai mourned. Grief gripped the city.
Instead of giving “grief, sorrow words”, as Malcom in Macbeth contended, the government
went on to give grief, sorrow action. As a sequitur, offices were shut, transportation was
halted and most significantly freedom of speech and expression was restricted. These sullen
and bedevil acts of the government to restrict fundamental rights formed the foundation of a
now celebrated judgement of Shreya Singhal v. Union of India

Today in the middle of a pandemic, the city is gripped with fear if not with grief, and the
police, have again followed its infamous precedented step of restricting freedom of speech
and expression. This time it is by issuing a gag order (hereinafter ‘the order’). The order
issued on 23rd May, 2020, by the Mumbai Police under Sec. 144 of CrPC (Code of Criminal
Procedure, 1973) states that, any person who disseminates any incorrect or distorted
information on online platforms, which may incite panic or confusion, cause mistrust of
public towards the government or fuel discrimination towards a particular community shall
be punished under Sec. 188 of the Indian Penal Code, 1860 (IPC). Additionally, ¶4(iv) of the
Order also prohibits any criticism of any actions taken by the government functionaries to
curb the spread of the virus. This order also holds the ‘admin’ of the online messaging group
liable for dissemination of information, falling in the above stated category. Interestingly, the
validity of the order was stated to be only till 8th June 2020.

The order, even if intended to curb dissemination of fake news is drafted in such a
humongous way that it restricts critiquing or raising questions against the government.
Although, the order is now no more effective, it has already drawn a big scar on the face of
democracy, which was already in a ramshackle after the advent of the pandemic. This raises
the question of constitutionality of this order. This post argues against the gag order as being
ambiguous, arbitrary, and unconstitutional.

The Constitutionality of the order

Article 19(1)(a) of the Constitution of India, guarantees freedom of speech and expression to
all citizens and at the same time Article 19(2) imposes reasonable restrictions on the contours
of this right on the grounds of security of the state, public order, decency and morality
amongst others. These reasonable restrictions, as has been held by the Supreme Court (SC),
must not be arbitrary, excessive, or beyond what is required in the interest of the public (¶62).
Therefore, if any law or regulation transgresses this scheme of restrictions, it shall be held
unconstitutional. Two doctrines that are of vital importance in determining the
constitutionality of any decision subverting freedom of speech and expression by the
administrative arm of the State are the doctrine of proportionality and doctrine of imminent
lawless action. The authors shall delve into these two doctrines to analyse the
constitutionality of the Order.

Doctrine of Proportionality

The Doctrine of proportionality or the balancing test is meant to check the ‘manifest
imbalance’ of the measures taken by administration to achieve a particular object.(¶19) The
doctrine states that the action taken by administration must not be irrational, unreasonable or
contrary to law.(¶17) In the judgement of Modern Dental College & Research Centre v. State
of Madhya Pradesh the Apex Court went a mile ahead and arrived at a ‘4 point
proportionality test’ (¶224) to adjudicate the constitutionality of administrative actions. The 4
points were that (a.) the measure is designed for a particular propose (b.) the measures are
rationally connected to the fulfilment of the object (c.) there is no alternative less invasive
measure (d.) there is a proper relation between the importance of achieving the aim and the
importance of limiting the right.

The order fails to achieve the balance between restricting the rights and achieving the object.
Firstly, it is a trite that dissemination of information on an online platform can happen from
any part of the country. This is to say that if any false information has to be spread it can be
done by anyone from any location. Thus, in that case, the order fails to achieve its primary
objective of curbing incorrect information, because it applies only to residents of Mumbai.
Secondly, to ensure that people get correct information in these testing times, the authority
could have taken upon itself to circulate correct and authentic information however, that has
also not been undertaken. Thus, instead of looking at a possible alternative, the police have
chosen to transgress the fundamental rights. Thirdly, no rationale has been argued as to why
and how the admins of messaging groups will be held liable for the messages circulated,
because admins cannot have complete control over what is sent in the group by people sitting
in any part of the country or world. Lastly, the order provides no exception to journalists and
other social activists who act as bulwark against unconscionable activities of the government.
Thus, it can be conclusively stated that authorities failed to assess existence of any alternative
mechanism, (¶17) and went on to impose a blanket ban so much so to restrict criticism of
government by journalists as well.

Doctrine of Imminent Lawless Action Test

The doctrine of imminent lawless action test is a successor of the doctrine of clear and present
danger test and was laid down by the U.S. Supreme Court in the judgement of Brandenburg
v. Ohio (1969). This test was made law of the land in India by two SC Judgements of Sri
Indra Das v. State of Assam and Arup Bhuyan v. State of Assam. The test lays down that
“the constitutional guarantees of free speech and free press do not permit the State to forbid
or proscribe advocacy of the use of force or of law violation, except where such advocacy is
directed to inciting or producing imminent lawless action”.

In the present case, when the order restricts dissemination of information that can cause
mistrust against the government, it cannot be classified as situation of imminent lawlessness
to the community. Messaging on social media may highlight some of the pressing issues such
as lack of beds in hospital which can push the authorities to work properly. Even if it is
argued that there are chances of spreading false news, it cannot be classified as a mingling
danger to the interest of community so much so that a blanket ban needs to be imposed on the
freedom of expression. The Mumbai Police could have used other methods to address real
objective, instead of issuing such order which can infringe the fundamental rights of the
people and media at large.

Existence of other laws

Sec. 144 of CrPC, under which this order was issued, is considered a draconian provision
whose constitutional validity has been challenged multiple times. Nonetheless, the Supreme
Court in 7 judge bench has upheld its validity. The Court in the judgement of Anuradha
Bhasin has noted that order passed under sec. 144 has direct implications upon the
fundamental rights of the citizens. Therefore, such power must not be used repetitively,
casually and in a cavalier manner (¶137). Additionally, the Court observes that under the law,
Magistrate is duty bound to ensure that restrictions are not excessive and alternative options
must be resorted (¶133).

On this note, the question arises do the authorities and the State have sufficient laws to
manage the flow of correct information and punish those who ring false alarm? As an answer,
the Sec. 505 of the IPC prohibits any person from spreading rumours or inciting enmity and
hatred against any specific community. Further, Sec. 54 of the Disaster Management Act,
2005 punishes for raising or circulating false alarm.

Thus, based on these two provisions, it can be concluded that there already exist laws to deal
with the situation and the order issued by the Police being a scarecrow is clearly a misuse of
power, which does not comply with the observation made by the Apex Court.

Conclusion

Mark Antony, in the immoral classic Julius Caesar, during the death of this friend Julius
Caesar said “…For I have neither wit, nor words, nor worth, Action, nor utterance, or the
power of speech…” The gag order issued by the Mumbai Police seems to be inspired from
this noteworthy line only, where it attempted to restrict action, speech, and utterance against
the government and its actions, even at a time when true democracy is at test not only in
Mumbai but also in India and across the globe.

Conclusively, the order fails to satisfy basic conditions of reasonable restrictions as

mentioned under Article 19(2), and also lacks in its spirit to achieve the intended goal. Thus,
it can be said that the order is arbitrary, vague, and unconstitutional. The government and its
administrative arm must refrain from issuing such orders which may have negative
ramifications on the fundamental rights of people. However, if the situations demand
issuance of any such order they must issue it while balancing the rights of citizens.
Nonetheless, the matter is in hearing before the Hon’ble High Court of Bombay and the
authors believe that the Court will take correct stance to judge the veracity of this order.