Author: Neha Sharma
University Of Petroleum & Energy Studies, Dehradun
“If our democracy is to flourish, it must have criticism; if our government is to function, it must have dissent”. This quote from a prominent American historian ‘Henry Steele Commager’ seems apt for the neoteric infamous prohibitory order issued by Mumbai Police Commissionerate on May 23, which called for an absolute gag on the persons speaking against the State government’s functioning amid these unending stimulating times of Covid-19. As per the statement made by Deputy Commissioner ‘Pranaya Ashok’, the order was issued to deal with the “animosity created in the state due to Covid-19”. But this, in turn, seeks to interdict any sort of condemnation of the government of Maharashtra and muffles an individual's basic right to freedom of speech and expression enshrined in our Constitution [Article 19 (1) (a)].
The gag order issued under Section 144 of the Criminal Procedure Code (CrPC) was signed by Pranaya Ashok, Deputy Commissioner of Mumbai Police (Operations) and overtly stated that the “dissemination of false and unverified information in regards to the government’s functionality, offline as well as on various social media platforms is prohibited”. It also proscribes content “which causes panic and confusion among the people” and “incites mistrust against the government officials or their acts to prevent the spread of coronavirus, thereby causing danger to human health or safety or a disturbance to the public tranquillity”. The order further directed that legal action will be taken against individuals who violate the order under Section 188 of IPC. This prohibitory order was in effect for a duration of 14 days, i.e., from May 25 to June 8 thus now becoming infructuous. But many people raised their voices against this gag order who found it wrong to be issued in a democratic country. A petition was also filed in Bombay High Court by BJP MLA Mangal Prabhat Lodha, challenging the constitutional validity of the order. In the petition, Lodha said that the order is “so vague that there are no guidelines for authorities on its implementation, thus creating panic and an unjustified as well as harsh gagging effect on freedom of speech”.
INCONSISTENCY OF THE GAG ORDER:
Amidst this pandemic, Maharashtra, the most affected Indian state, is facing criticism from the general public as well as different political parties. But the state’s decision to defeat opposing voices seems disproportionate. The recent January judgement in the case of “Anuradha Bhasin v. Union of India” had observed that the magistrate is duty-bound to balance the rights and restrictions based on the principle of proportionality and thereafter apply the least invasive measure. The bench of Justices N.V. Ramana, R. Subhash Reddy and B.R. Gavai had observed that repetitive orders under Section 144 would be an abuse of power. Disha Wadekar, a senior Supreme Court lawyer said that fundamental rights cannot be put off under the guise of “reasonable restrictions”. For the same matter, Justice Anjana Prakash, former judge of Patna high court also commented that, “The gag order is prima facie illegal and beyond the scope of section 144 of CrPC. The Magistrate does not have such wide and unbridled powers. In a democracy, every Institution has to function within the prescribed parameters. So, for the magistrate to forbid a citizen from having a contrarian opinion is not only illegal but also offensive”.
Although, the Uddhav Thackeray government has claimed that it is only directed against disinformation on social media, but the way it is formulated, it has a larger scope and can be used against all critics. It militates against freedom of expression thus becoming untenable. After all, dissent is a fundamental pillar of democracy. Such an order can have a larger impact over the other states as well. Hence, it becomes necessary to impede administrations to regulate such orders which hamper fundamental rights of the citizens. This prohibitory order thus not only violates Article 19(1)(a), but also fails all the proximity and reasonableness tests laid down under Article 19(2). It must be made clear to the administrations that Section 144 cannot be used as a legal tool to suppress the constitutional rights. Because then it will be nothing but unobstructed misuse of power by the government.
Justice Deepak Gupta, in one of his lectures, said that, “The Constitution of India guarantees every citizen, the right to question, to confront or to ask for accountability from the government. These rights should never be snatched away, otherwise we will become an unquestioning moribund society, which will not be able to develop any further.” The essence of democracy is that every citizen has a right to participate not only in the electoral procedure but also in the way in which our country is governed. This right becomes meaningless if that person cannot criticize the actions of the government. And the repudiation of this right is murder of democracy. However, the fundamental rights in the Constitution are well balanced by the “reasonable restrictions”, but the restrictions need to be reasonable per se and should not just blindly snatch away the entire power entrusted by the Constitution on its citizens. Because a democratic country ensures its public to be able to question and criticize their government without fear of being publicly humiliated and prosecuted by their government. As ultimately, we are citizens and not subjects. A citizen is an integral part of the country having a right to express their views even if they are totally contrary to the views of those in power. No doubt, these views must be expressed in a peaceful manner, but citizens have a right to criticize when they feel that actions taken by the government are not proper. Their cause may not always be right. At the same time, the government may not also be right. Therefore, every conflicting opinion should be valued and not just scuttled under the imaginary threat to public safety or danger. People need freedom and not tyranny, because here, in democracy, government is not above the people.
The anchor of our democracy is the ‘Rule of law’ and when it disappears, we are ruled by the eccentricities and fancies of a few. The Preamble to the Constitution of India guarantees - Liberty of thought, expression, belief, faith and worship as well as the (a) to (c) clauses of Article 19 (1) assure - freedom of speech and expression, freedom to assemble peaceably without arms and the freedom to form associations or unions. These three freedoms are mediums through which conflicting or opposing views can be expressed. The right to disagree, the right to dissent and the right to take another point of view would be present intrinsically in each and every citizen of the country. We all must be open to criticism. New thinkers are born when they disagree with well accepted customs of the society. If everybody follows the well-trodden path, no new paths will be created, no new discoveries will be done, and no new panoramas will be found. So, criticisms are necessary for the development of any individual or a country, for that matter, so as to ensure that each and every citizen of the country is satiated, that their point of view matters. The government should respect the criticisms of its citizens and should try to find out possible ways to curb the problems faced by people of its country. Because, if in case we attempt to stifle criticism of the institutions, whether it be the legislature, the executive or the judiciary or other bodies of the State, we might become a police State instead of a democracy and this, the founding fathers never expected our country to be.
1. The Wire, Mumbai police issues Gag Order, Declaring criticising the Govt. a crime, Available at: https://thewire.in/rights/mumbai-police-gag-order-section-144
2. Justice Gupta, The Right to Dissent is the most important right guaranteed by the constitution, Available at: https://thewire.in/law/right-to-dissent-constitution-justice-deepak-gupta