Freedom of Expression during COVID-19

Introduction:

It is well cleared that Freedom of expression is mentioned in the preamble of Indian Constitution and is well protected under the delicacy of Fundamental Rights which is mentioned in Part III, Article 19(1)(a) which signifies that every citizen of India must have right to freedom of speech and expression[1]. But this must be kept in mind that the aforementioned right is not an absolute right it is put through “reasonable restrictions” which will be measured in the sovereignty and integrity of the country or friendly relations with foreign states or morality or relation to the contempt of court, defamation or incitement of an offence.[2] This must be noticed that Article 358 relates with the suspension of rights conferred in article 19 during any declared emergency and Article 359 supports the article for enforcing suspension of rights during emergencies.[3]

Freedom of Expression in relation to Covid-19

It is well cleared that no provision in the constitution of India supports or deals with the term “fake news” although there are many offences mentioned under different laws that penalise the forms of speech that have fake news and while mentioning the period of Covid-19 the declared pandemic, have been applied also. In section 505 of Indian Penal Code have provisions which conduce all public mischief and it carries punishment as fine or imprisonment.[4] The section clearly states that whoever publishes makes or circulates any particular statement or rumour which intents to cause or which could cause fear or alarm to the public or any particular section of the society any person may be induced to commit an offence against the public tranquillity and will be punished under section 505.

The news of Covid 19 travelled in the world so fast and with such a huge impact that left everybody in the situation of fear. Though in very beginning likely in February 2020, Central government advised relevant agencies in every States and Union territories to take proper actions to avoid the spread of the fake news, advisories and unnecessary information which were floating through various social media platforms in the country.[5]

To maintain situations more perfectly government of India needed to impose several acts as well which could work in parity to fight with pandemic as well as glitches like fake news. Therefore the Central government has issued guidelines to invoke the Epidemic Diseases Act of 1897 and Disaster Management Act, 2005 which could deal perfectly with Covid-19 epidemic. In the Disaster Management Act section, 54 mentions that “whoever will circulate a false alarm or to warnings as a disaster or its severity, magnitude leads to panic, will be punishable with imprisonment which can be extended for one year or with fine. When the central government issued the guidelines for 21 days nationwide lockdown it was about this particular section. Even though there were many cases registered for false news being spread in the nation related to pandemic though the Union Minister of Interior announced that there are several rumours spread about Covid-19 which is leading towards misinformation. FIR that is First Information Reports will be registered against those involved in spreading of these rumours and the strictest action [6]will be taken against them under the specific provisions mentioned in the Disaster Management Act.

Steps were taken by State Governments

There were several measures taken in states as well under the provisions of the Epidemic Diseases Act, 1897[7] as well as under the Disaster Management Act, 2005[8] to deal with the pandemic situation. The best example could be seen in the reference of Maharashtra Government as here government issued Maharashtra COVID-19 Regulations, 2020 which prohibits every organisation and individual for announcing any information related to Covid-19 without any prior clearance or checking of relevant government health authorities, the steps were taken by the government to avoid the flow of misinformation in the public about the virus.

The section 3 of Epidemic Diseases Act, 1897 Act also says that any person who’ll disobey the orders and provisions mentioned to avoid the flow of misinformation will be deemed or considered as committing an offence under section 188 of Indian Penal Code which consists provision for disobedience to order promulgated by the public servant. This is depicted that disobedience that causes or tends to cause danger to the human life, safety or safety that could cause a riot or panic shall be punished with imprisonment which could be extended to the period of 6 consecutive months or the fine that extends to rupees 1,000 or with both.

The Fake news has become such a vast and wide issue that in past there were several other laws and regulations or acts used to control the hazards caused by it as Section 69A of Information Technology Act and the Indian Telegraph Act, 1885 within this there were several provisions for internet shutdown and rules to block internet content which are helpful in the situations like Covid-19.[9]

Although, in that particular period order has been issued by the Maharashtra Government that reasonableness will be given importance while considering the period of lockdown. Seizing people or arresting people for the allegations of fake news, derogation, discriminatory practices through social media, the government decided to handle this matter in the favour of public health. And this is a necessary step taken by the government to control the increasing anxiety levels and panicking by people.

But reasonableness is also explained with the essence of proportionality and expressly divided into four basic parts:

1. The restrictions imposed by the government must have a legitimate ultimate goal.
2. For the purpose of furthering this goal, restrictions must be in a suitable means.
3. If there is a less restrictive alternative then these restrictions will be denied.
4. Restrictions should never impact inappropriately towards the right-holder.

Also, the order issued by the Maharashtra Government has an ultimate legitimate goal of protecting public order. The step taken by the government was much necessary as this has already made repercussions previously in the Mumbai caused gathering of million at a place in a city, so the step was legally correct as was done to protect public health amid pandemic.

The measures were also ratified by honourable Supreme Court in its latest judgement in Alakh Alok Srivastava v. Union of India where court mentions that regulating freedom of speech and expression during the pandemic is justified. The order also guided the government to take the least restrictive measures and there should not be a blanket ban on any social media platform as well. And this will ensure that things won’t go against the right holder as well. Court also mentions that freedom of speech and expression does not infringe article 19(1) (A), especially this is worth noting that there could be a situation where private right needed to be sacrificed in the light of public interest.

Government of Assam has also taken several measures to stop online phishing as well as the culture of fake news during the period of lockdown as Government filed charges against the newspaper named Bengali Daily which carries the wrong report about the state’s first Corona case. The case was against the reporter and the publisher of the newspaper which was reported under section 188 of the Indian Penal Code r/w the provisions of Assam COVID-19 regulations, 2020.

There were several additional steps as Assam DIPR also formed the committee consists of five members which monitor and checks all the fake news in the developed social media platforms. The committee was set and appointed under the guidance of state which consists of members from Disaster management, health and police departments. The basic role of the committee was to keep a close eye on every social media platforms and also created several Whatsapp Numbers to check the information floated. Up to April 8, 52 cases has been recorded for spreading rumours and uploading disagreeable statements or comments on social media and 25 were arrested.

Implementation and the Real Truth

There are several rules and regulations in our country but until and unless we won’t use them there’s any sense of having them and the unprecedented times like this forced government to implement them to stop the fake news and panics people are facing in daily life where they are in full home isolation and news like this could force them to be in anxiety attacks[10] and more, according to report of ICMR there are 50,000 recorded and more than 10 lakh cases of anxiety attacks which left many in serious syndromes as well. To prevent this in April 2020 government took measures and around 640 cases were lodged in the country about spreading fake news via social media platforms.[11]

But various reports tell something blunder has been done as well as according to the group created by the union government, Rights and Risks Analysis Group (RRAG) issued a report in June 2020 which shows facts as- About 55 Journalists in the country faced arrest, registered FIR’s in names, various summons and show cause notices, wrongful destruction of property, as well as physical assault and many,, got threats on reportage of Covid-19 while exercising freedom of expression or putting opinion in lockdown for the term 25^th March to 31^st May. In all of these highest cases of attacks on media was recorded in Uttar Pradesh, which consists a number of 11 journalists followed by Jammu and Kashmir, which consists of 6 journalists and almost 4 each in every state of North India.[12]

Conclusion

Several activists for the protection of Fundamental rights claims as well as to complain that nationwide arrest under Epidemic Diseases Act, 1897 and under several sections of Indian Penal Code were only with the reason to stop the criticism by media towards central government’s policy and against departments of health care. This was recorded in the statement of Apar Gupta, a Supreme Court lawyer and social activist. [13]This must be noted down that up to a certain level these news and social media posts fall within permissible limits of freedom of speech in the constitution. But State Governments are using an excessive power that’s beyond the head of public health but for the fulfilment of many political issues and now this is a serious matter of agitation. Although it was an unprecedented time and situation handled in our country was quite well enough though this point needed to be understood that promulgation of regulating freedom of speech and expression was not wrong as it was considered as regulating provision in our country so, the ultimate aim was not to make its blanket ban.

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References:

[1] Constitution of India, Article 19(1) (a), https://perma.cc/MCD8-7XAT.

[2] Constitution of India, Article 19(2).

[3] Constitution of India, Article 358 and Article 359.

[4] Indian Penal Code, No. 45 of 1860, https://perma.cc/49VP-ZC6C.

[5] Government of India, Ministry of Home Affairs, National Disaster Management Authority, D.O. No. 1-137/2018-Mit-II (FTS-10548) (Feb. 4, 2020), https://perma.cc/K4HD-824S.

[6] Coronavirus: FIR to Be Registered against Those Spreading Rumours, Says MHA, Yahoo News (Mar. 31, 2020), https://perma.cc/67BA-UUPB.

[7] Epidemic Diseases Act of 1897, https://perma.cc/GT3F-Y7CZ.

[8] Disaster Management Act, No. 53 of 2005, https://perma.cc/9AV5-JHT3.

[9] Tariq Ahmad, Government Responses to Disinformation on Social Media Platforms: India (Law Library of Congress, Sept. 2019), https://perma.cc/9WQ7-MRY8.

[10] Police Crackdown on Covid-19 ‘Misinformation’, Activists Concerned, Hindustan Times (Apr. 30, 2020), https://perma.cc/F5BK-RXDH.

[11] Ibid

[12] The Rights and Risks Analysis Group (RRAG), India: Media’s Crackdown During COVID-19 Lockdown (June 15, 2020), https://perma.cc/7EL2-8KJ4.

[13] Supra note 9.