The COVID-19 pandemic has provided fertile ground for government censorship of speech and expression. The curbing of speech is one issue that has constantly plagued China’s battle against the Coronavirus outbreak, which resulted in not only China, but the world paying a high price for it.

Recent cases such as that of Dr. Indranil Khan, and the FIR against Siddharth Varadarajan, among other such cases, point towards a disturbing trend that appears to be taking hold in India regarding the open reporting and expression of opinion over the Coronavirus situation in the country.

While there are multiple laws and ways by which the government can and has in the past curbed freedom of speech, this article tries to analyse the challenges to freedom of speech posed by laws which are arguably unique to the COVID-19 situation.

Developments

In Dr. Khan’s case, the Calcutta High Court passed an order directing the police to immediately return his mobile phone and SIM card and also directed that there shall be no further interrogation without the leave of a proper court.

Further, the respondents may start a criminal case against the writ petitioner without arresting him. The liberty of the petitioner can only be curtailed by orders of the said court to be passed in a properly instituted proceeding, the Court had held.

The Calcutta High Court also held that freedom of speech and expression granted under Article 19 of the Constitution of India has to be scrupulously upheld by the State even if an expression of opinion brings the government into disrepute. The State cannot use the police to intimidate critics into silence, the Bench held.

Ironically though, the Court also prohibited Dr. Khan from making any further Facebook posts in this regard till the time all investigations and a possible court case against him get over. By doing this, it ended up clamping down on the very freedom of speech it was claiming to protect.

This is indicative of a worrying trend where courts on the surface appear to be champions of free speech and open coverage, but end up doing more harm than good in the process. This was seen when the Supreme Court directed media houses to only report the official information and figures issued by the government regarding the COVID-19 situation.

The charges filed against Siddharth Varadarajan include those under Section 188 of the Indian Penal Code, for disobedience to an order duly promulgated by a public servant. Section 505(2) of the IPC, dealing with “statements creating or promoting enmity, hatred or ill-will between classes” has also been invoked. And in one of the FIRs, charges under Section 66D of the IT Act, entailing punishment for cheating by personation by using computer resources, have also been added.

All this for an article The Wire had published regarding the Uttar Pradesh CM’s dereliction of the national lockdown, the incident being a fact on record. This is symptomatic of the kind of state intimidation faced by Dr. Khan. I hope the order passed in Dr. Khan’s case serves as a guiding precedent for the courts in quashing such disproportionate state action.

Laws pertaining to freedom of speech brought in during the COVID-19 lockdown

The question then is what is the current position of the laws meant for specifically dealing with COVID-19, on the freedom of speech and expression? What are the likely ways the government could curb speech and expression, and do such actions have the sanction of these laws?

Currently, primarily a combination of the National Disaster Management Authority Act, 2005, the Epidemic Diseases Act, 1897, along with the varied usage of Section 144 of the Code of Criminal Procedure by the states, are being used as tools during the lockdown. Thus, it’s important to analyse what each law says about restrictions on free speech in such a situation.

Beginning with the NDMA, 2005, there is a great deal of subjectivity that this Act allows for. While the Act doesn’t go into details regarding the rights of speech during national disasters, Section 6(1) allows for the National Authority to lay down policies, plans and guidelines for disaster management. This wording gives it a fairly wide scope of power, wherein the National Authority may, as and when required, lay down policies and guidelines regarding speech and expression on a case to case or time to time basis.

This may be done via guidelines and addendums made to supplement the Act. Section 18(1) provides similar powers to the state authorities. Also, Section 35(1) grants the Center the power to take all such measures it deems expedient for disaster management.

This, in my opinion, is the most worrisome aspect of the Act. Without proper clarification, it empowers the government to take sweeping measures, which may include clamping down on free speech, in the name of disaster management. I feel this is the one section free speech may primarily fall prey to. Section 54 also provides penalty for circulation of a false alarm or warning as to disaster or its severity or magnitude, leading to panic.

The EDA, 1897 grants governments a high degree of power to take special measures and prescribe regulations to control outbreak and spread of dangerous epidemic diseases. Though it makes no specific mention of speech and expression, in such a situation, it appears to me that the government may use its powers under this act to prevent situations such as the Nizammudin Markaz incident.

This has resulted in a disaster whereby the Nizammudin Markaz has now emerged as the COVID-19 epicentre of India. It appears correct to me to restrict speech in such situations under the aegis of this Act. However, to implicate any other form of speech and expression which poses no threat to the outbreak and spread of such a disease should absolutely not face any implication under this Act, and should be duly quashed.

Coming to Section 144, as has been previously discussed by Gautam Bhatia, the country is not yet under curfew, neither is the lockdown an emergency entailing the suspension of various Fundamental Rights. Section 144, however, allows a District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate empowered by the state government to direct any person to abstain from a certain act that is likely to prevent hindrances to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public order in general.

This again allows for a grey area where it is left primarily up to the subjective opinion of the Executive to decide whether an act poses a risk to public order or not. This ‘act’ may very well be interpreted as the speech and expression of a person or corporation. Thus, Section 144 may end up being misused to stifle speech and expression.

The doctrine of proportionality, and ‘reasonable restrictions’ to the rescue

In such a situation, where the government and other authorities have been granted wide-ranging powers to curb speech and expression guaranteed under Article 19(1)(a) of the Constitution, legal protection is provided by the Doctrine of Proportionality and the ‘reasonable restrictions’ under Article 19(2). Proportionality and reasonability are the touchstones on which such government actions should be measured.

In Om Kumar v. Union of India, the Supreme Court observed that restrictions on fundamental freedoms have always been checked on the “anvil of proportionality”. The Court sees if the measures taken by the body are the least restrictive means to achieve the purpose. If they aren’t, then the restriction imposed will be quashed using this doctrine.

In cases where the rights provided under Art.19(1) and 21 are restricted by administrative actions, the courts act as a primary reviewer and go into the merits of the case while applying the doctrine of proportionality.

In KS Puttaswamy, the Court had observed,

“Proportionality is an essential facet of the guarantee against arbitrary State action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law…”

Although Article 19(2) allows the State to impose reasonable restrictions on the exercise of the rights conferred by Article 19(1), here the word ‘reasonable’ becomes the focal point of proportionality in such cases.

In Anuradha Bhasin v. Union of India, Supreme Court has proclaimed the exigent need to balance proportionality and reasonable restrictions with regard to regulation of speech and expression. It also held that restriction of speech and expression via acts such as indefinite shutdown of the internet, would be considered impermissible. Further, restrictions made under s.144 cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights, the Court had held.

Conclusion

The COVID-19 pandemic has brought with the implementation of laws which we generally aren’t subject to or used to. These laws may become tools for the government for curbing of speech and expression during this crisis.

To prevent that and to ensure that our right to speak and express ourselves is upheld in these trying times, the only way forward is to ensure the proper harmonisation of the principle of free speech and expression guaranteed under Article 19(1)(a), the reasonable restrictions encapsulated in Article 19(2), and the Doctrine of Proportionality that has become a legal standard for protection of civil liberties and rights of individuals.

The author is a student of Dr Ram Manohar Lohiya National Law University, Lucknow.