When Silence Isn’t Golden: How The Mumbai Police’s Gag Order is Per

Incuriam

Introduction

In 2013 when Shri BalasahabThakery died, the whole city of Mumbai mourned. Instead of
giving “grief, sorrow words”, as Malcolm 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. This sullen and bedevil acts of
the government to restrict fundamental rights formed the foundation of a now celebrated
judgement of ShreyaSinghal 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 has been done by issuing a gag order. The order issued on 23rd
May 2020 by the Police under sec 144 of CrPC 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 section 188 of the Indian Penal Code, 1860. 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 of June 2020.

Even if this gag order (“the order”) aims at curbing 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 is already in ramshackles since the advent of the pandemic. This raises the
question of constitutionality of this order. This post seeks to argue how this gag order is
ambiguous, arbitrary, and unconstitutional.

The Constitutionality

Article 19(1)(a) of the Constitution, guarantees freedom of speech and expression to all
citizens, whereas 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. This
reasonable restriction, as has been held by the Supreme Court, must not be arbitrary,
excessive, or beyond what is required in the interest of the public. i Therefore, if any law or
regulation transgresses this scheme of restriction, it shall be held unconstitutional. ii Two
doctrines that are of vital importance to determine the unconstitutionality of any decision
attacking freedom of speech and expression by the administrative arm of the State are the
doctrine of proportionality and doctrine of clear and present danger. The authors shall delve
into these two doctrines to analyse the unconstitutionality of the Order.

Doctrine of Proportionality

The Doctrine of proportionality or the balancing test is mean to check ‘manifest imbalance’
of the measures taken by administration to achieve a particular object. iii The doctrine states
that the action taken by administration must not be improper, irrational, unreasonable or
contrary to law.iv 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’ to adjudicate the constitutionality of administrative action. The 4 points were (a.) that
the measure is designed for a particular propose (b.) that the measures are rationally
connected to the fulfilment of the object (c.) that there is no alternative less invasive measure
(d.)that there is a proper relation between the importance of achieving the aim and the
importance of limiting the right.v

The Mumbai police gag order fails to achieve the balance between restricting the rights and
achieving the object. It is trite that dissemination of information on an online platform can
happen from any part of the country. This means 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 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 in the group because admins cannot have complete control over what is sent in the
group, by people setting in any part of the world or country.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
mechanismvi, and went on to impose a blanket ban so much so to restrict criticism of
government by journalists as well.

Doctrine of Clear and Present Danger

The Doctrine of clear and present danger is majorly used in the context of sedition. The Court
while construing this doctrine has stated that words of any individual to cause sedition must
be seen in complete, and then the nature of speech must be assessed as to whether it tends to
create public disorder or not.vii

Albeit this doctrine is used more in the connection with matters relating to sedition, it has
also been imported and used in matters concerning freedom of speech and expression. The
Supreme Court in S Rangarajan v. P Jagjivan& Ors.noted that freedom of speech and
expression cannot be supressed unless the interest of the community is endangered.
Additionally, the anticipated danger should not be remote, rather it must have proximate and
have direct nexus with the expression.

In the present case, when the order restricts dissemination of information that can cause
mistrust against the government, it cannot be classified as present danger to 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 of false news it cannot be classified as mingling danger to the interest of
community so much so that a blanket ban needs to be imposed on the freedom of expression.
The Police could have used other methods to address real objective instead of issuing such
order which can infraction the fundamental rights of the people and media at large.

Existence of other laws

Section 144 of CrPC, under which this order was issued, is considered a draconian provision
whose Constitutional validity has been challenged multiple times. Nonetheless, a 7 judge
bench of the Supreme Court has upheld its validity. The Court while upholding the validity of
this provision noted that powers under section 144 must be used judiciously, only in case of
emergency circumstances to avert detrimental incidents.viii

On this note, the question arises do the authorities and the State have sufficient laws to
manage flow of correct information and punish those who ring false alarm? As an answer, the
Indian Penal Code, 1860, and disaster management Act, 2005 do have provisions to address
this misfeasance. Section 505 of the Indian Penal code prohibits any person from spreading
rumours or inciting enmity and hatred against any specific community. ix Section 54 of the
Disaster Management Act punishes for raising or circulating false alarmx.

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 clear 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, nor the
power of speech”. The gag order issued by the police seems to be inspired from this
noteworthy line only, where it attempted to restrict action, speech, words, and utterance
against the government and its actions, even at a time when true democracy is a test not only
in Mumbai but also in India and across the globe.

Conclusively, the order fails to satisfy basic conditions of reasonable restriction 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 theymust 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.
i
BishambharDayal Chandra Mohan v. State of U.P., (1982) 1 SCC 39, ¶62.
ii
Indian Express Newspaper v. Union of India, (1985) 1 SCC 641.
iii
Coimbatore District Central Cooperative Bank v. Coimbatore District Central Cooperative Bank Employees
Association and Anr., (2007) 4 SCC 669, ¶19.
iv
Id. ¶17.
v
Modern Dental College & Research Centre v. State of Madhya Pradesh(2016) 7 SCC 353¶60.;see alsoK. S.
Puttaswamy (Retd.) &Anr. v. Union of India (II),(2019) 1 SCC 1; Internet and mobile association of India v. Reserve
Bank of India,2020, SCC OnLine SC 275, ¶224.
vi
AnuradhaBhasin v Union of India, 2020 SCC OnLine SC 25.
vii
KedarNath Singh v. State of Bihar, AIR 1962 SC 955; see alsoShreyaSinghal v. Union of India, (2015) 5 SCC 1 ¶37.
viii
MadhuLimaye v. Sub Divisional Magistrate Monghyr&Ors., 1971 AIR 2486.
ix
The Indian Penal Code, 1860, Act No. 45 of 1860, §505 (1860).
x
The Disaster Management Act, 2005, Act No. 53 of 2005 §54 (2005).