In facile words, the gag order is an order, typically passed by the Court or the government, restricting an information or comment from being made public. In the present context, the Gag order was passed by the Mumbai police on 23rd May 2020, which came into effect from 25th May 2020 to 8th June 2020. This order shall restrict the public their right to comment or criticise the functioning of the government over online social media platforms like Whatsapp, Twitter, Facebook, Instagram, etc.

The order was passed under S.144 of Criminal Procedure Code (CrPC), 1973 to ensure that there is no danger to human health or safety or disturbance of the public tranquility. Any person contravening this order shall be punishable under S.188 of the Indian Penal Code, 1860. This order raises several questions on the constitutional rights bestowed to the citizens.

The Gag order is challenged before the Bombay High Court as it violates the fundamental right of freedom of speech and expression provided by virtue of Article 19 of the Constitution of India and, therefore, liable to be struck down. The Court adjourned the petition till June 23rd. Moving forward, the blog discusses the Gag order vis- a- vis freedom of speech and expression and case laws pertaining to the present context.

Gag order vis-à-vis Freedom of Speech and Expression

Every citizen of the country has the right to freedom of speech and expression under reasonable restrictions; however, fundamental rights are not every time suspended under the guise of reasonable restrictions. S.144 of CrPC cannot be used to suppress the constitutional rights of the individual. The Court has recognized that the citizens’ right to peaceful protest was a fundamental right under Article 19(1) of the Constitution, subject to reasonable restriction; however, the restriction should be imposed after the proper application of mind and taking care of the rights of the individual. [1]

The gag order imposed by the Mumbai police is to prohibit any person from inciting mistrust towards the functioning of the government, spreading the misinformation or causing panic and confusion among the general public and to prevent the spread of the COVID-19 virus, however, as a matter of fact this prohibitory order has a clause which is restricting the fundamental rights of the citizens to criticise the functioning of the state government. The freedom of speech and expression forms the core of any democracy, according to J.S Mill, - For stability of society one must not suppress the voice of the citizens, how so ever contrary it might be. [2]

Punishing individuals for criticizing the state contradicts the right of freedom of speech and expression. Supreme Court held that:
everyone has a fundamental right to form his opinion on any issues of general concern. Open criticism of government policies and operations is not a ground for restricting expression. Intolerance is as much dangerous to democracy as to the person himself.[3]

In a democracy, every institution shall perform its function within the prescribed limits, thus, the action taken by the Commissioner of Police or the Magistrate to forbid citizens from having a contrary opinion against the state, makes it unlawful as well as offensive. The misuse of the power by the authorities is severe injustice to the common people, who elect politician to protect their rights, but they end up in the trap, which makes them powerless as all the rights are conferred to them.

The Mumbai police are using Gag order as a tool to take away the right of the people to criticize the government; without the right to criticise the government, we land up in the State which is a tyrant in nature and where the rights of the people are not respected and honoured. This order of the Maharashtra government is vague and they are trying to remove the people’s rights under the veils of public health and tranquillity. Even, if we see it from the laymen perspective it is violating their rights to speak against the arbitrary order like this, so looking it from the lawmen perspective will anyhow make this order unconstitutional.

Similarly after imposition of this prohibitory order, as after the recent decision of honourable Supreme Court, [4] right to use the internet forms part of freedom of speech and expression under Article 19(1)(a) as it allows an individual to express their views on social media; however, this gag order restricts individual to use the internet messaging and social media to express their opinion or criticising the state policy in a bona fide way before the social media users. This infringement of right leads to whacking injustice to the people who are considered as the backbone of the democracy and restricting the voice of such people shall put the very fundamental rights of the citizens in the uncertainty.

Supreme Court on Is Criticizing the state a crime?

In numerous cases Supreme Court confronted with issues where the state was violating the fundamental rights of the citizen by passing ex-parte orders, the apex court opined that, only at the time of exceptional circumstances the fundamental rights could be taken away, that too can also be done by following the guidelines laid down by the apex court. The rights cannot be taken apart to fulfill mala fide motive of the government. There are several incidents that show, how the state is being a tyrant from democratic by making ‘criticizing the state’ a crime.

In the recent judgment of, Anuradha Bhasin v. Union of India, [5] Supreme Court has explained the Principle of Proportionality, which says that every authorized person is duty-bound to balance the rights and the restrictions based upon the Proportionality and after that apply the least intrusive measure.

The guidelines given by the apex court are not taken care of while passing the arbitrary order like this and authorities did not ponder to balance the rights and the restrictions, they solely restrict the rights of the citizens. The order passed by the police commissioner is both disproportionate and intrusive as per the principle of proportionality laid down in the above judgment.

In the case of Brij Bhusan v. the State of Delhi, [6] the Supreme Court held that, Prior limitation upon the speech is possibly unconstitutional, as it confines the individuals or ideas, from entering the public sphere. It gives the state exclusive control over what material can or cannot be allowed to enter the marketplace of ideas.

In a case of Javed Habib v. the State of Delhi, [7] it was held that holding views against the state government cannot be considered as inappropriate. The apex court additionally held that, the democratic system, which essentially includes the advocacy of the substitution of one government by another, gives the individuals the right to criticize the government.

Conclusion
Criticizing the State is not a crime; instead, it is the heart of democracy. This right is vested by our constitutional forefathers to functionalize the democracy in the way it works. Questioning the politicians is the fundamental right of the citizens; however, presently, most of the politicians are trying to curb these rights by making it a crime.

In the recent anti-CAA protest, the citizens are criticising the bill, as they have the fundamental right to criticise but their rights are being curtailed, and they are charged for the sedition by the ruling government in the name of public disorder. Such stringent restrictions on the speech endanger the very idea of democracy.

The ex-parte gag order passed by the Mumbai police is unconstitutional as it violates the basic right of freedom of speech and expression, so it cannot be enforced at any stage whatsoever. Seeing the present issue of the pandemic in India, if we do not criticize the government for its false measures then it shall give them arbitrary power to take all actions without thinking twice about the fundamental rights of its citizens.

At last, we can hope that the Supreme Court would re-examine this misuse of power by the state government to fulfill its mala fide intention by curbing the rights of the individuals and come up with principles or guidelines against the state government which ensure that fundamental right of speech and expression should not be taken away, until and unless these thoughts and expression are made with an intention to disrupt the peace and tranquility of the society or danger the public health at large.

Endnotes:

1. Ramlila Maidan Incident v. Home Secretary, (2012) 5 SCC 1.
2. J.S Mill, The liberty of thought and discussion, Chapter 2, available at https://oregonstate.edu/instruct/phl201/modules/Philosophers/Mill/mill_on_liberty.html.
3. S. Rangarajan v. P. Jagjivan Ram, 1989 SCC (2) 574.
4. 2020 SCC OnLine SC 25.
5. 2020 SCC OnLine SC 25.
6. 1950 SuppSCR 245.
7. (2003) 8 SCC 461.