Constitutional Law

Freedom of Expression during Covid-19 in India

By Harsh Raj

Introduction

The COVID-19 outbreak has affected people worldwide in one way or other. The pandemic has changed a lot of lives since it was first discovered in December 2019. It has infected millions of people, and many more had died because of it. During such times of crisis, governments around the world are allowed or often required to take restrictive measures to contain the damage and destruction. However, many governments have used this opportunity as an oppressive measure to counter the critics. Restriction on free expression and information, constraining limits on public participation, increased surveillance are some of the restraining tools that are becoming increasingly common these days. 

Freedom of Expression 

The corona pandemic has resulted in the weakening of fundamentals rights such as freedom of expression, right to information, and right to privacy in many parts of the world. In addition, the state of emergency has been declared in different nations resulting in additional restrictions on the freedom of expression.

In India, Freedom of expression is an integral part of the constitution mentioned in the preamble of the Indian constitution and also under part III of the constitution as one of the fundamental rights, article 19(a) which states that “all citizens shall have the right to freedom of speech and expression.” However, this right is not absolute and is subject to “reasonable restrictions in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or concerning contempt of court, defamation or incitement to an offence.” During a declared emergency the suspension of rights under article 19 is provided under article 358. The procedure for suspending enforcement of the fundamental rights conferred by Part III “during emergencies is mentioned under article 359.”

Fake news during COVID-19

Mass media has always been important in spreading knowledge, information, ideas etc., so that it can reach as many as people possible. However, even more and more people are persistently forced to continuously search for information regarding the coronavirus and its infection due to the pandemic. Because of this, they have found themselves overwhelmed by the information that they get in response. Fake news has been an important issue during this process, often causing confusion and insecurity among the population that results in panic. The situation has further worsened due to the politicians’ controversial and influencing statements, which has formed an entirely different version of COVID in people’s minds. One of the very famous examples is how drinking cow urine can eliminate the virus, followed by many more ridiculous claims.

Somewhat similar confusion was created at the starting of the pandemic by a few medical practitioners whose difference in opinion and lack of fact-based information had caused an alarming situation. Because of a mere few of those statements, the world witnessed the sudden rise in the sale of toilet papers, PPE kits, alcohol-based sanitisers, which resulted in a spike in the price of such products and shortage in the different clinical centres.

Additionally, social media is well known for circulating and spreading “misinformation” and fake news. Unfortunately, this has reduced the importance of fact-based information. The misinformation regarding COVID-19 is so much that it is often challenging for people to distinguish the right one from the wrong without proper skills. Furthermore, misleading information about the treatment of the COVID has caused the abuse of certain drugs, which are affecting other body organs of patients.

Legal framework applicable to “Fake news” in COVID

Considering the need to protect people from panic and keep them informed about factual information, there is a legal framework required to curb the pandemic of fake news.

Some counties have adopted new laws or added provisions to penalise and punish the defaulters involved in circulating and spreading fake news (Russia, South Africa, Tajikistan). At the same time, the other countries preferred the older laws but in a more efficient implementation (Nepal, Pakistan, Belarus). Punishments of these crimes and violations range from nominal fines, community services to prison for a long time.

In India, there is no specific provision dealing with fake news exclusively. However, few laws somewhat deal with such speeches that can come under the ambit of “fake news”. In particular, section 505 of the Indian Penal Code states that whoever circulates or publish any statement or rumour that causes or is likely to cause fear or alarming situation to the people are liable to imprison up to three years or fine or both. To deal with the COVID-19 pandemic, the government has enforced the Epidemic Diseases Act of 1897 and the Disaster Management Act, 2005. Under section 54 of Disaster Management Act,2005, it is stated that “whoever makes or circulates a false alarm or warning as to disaster or its severity or magnitude, leading to panic, shall on conviction, be punishable with imprisonment which may extend to one year or with a fine.” The national lockdown which we witnessed was under the ambit of this section. Under the provision of the Disaster Management Act,2005, the government announced that the FIR (First Information Report) to be registered against the person spreading fake news. 

The state governments can also make specific rules and regulation to prevent the spreading of fake news in the state under the Epidemic Diseases Act of 1897. Section 3 of the Epidemic Diseases Act of 1897 states that “any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under section 188 (‘disobedience to order duly promulgated by public servant’) of the Indian Penal Code.” If such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both under section 188 of IPC.

Recent Cases 

On April 30 Supreme Court of India directed the central and state government to not bring any charges against the people who are airing their problems on the media platforms in an attempt to get some help, and failing to do so will push the courts to use the power available to them. This decision came after the arrest and legal actions against people who brought out the governments’ mismanagements and failures in the forefront. Despite this, the same was seen in Delhi, where FIR was registered against those who posted critical posters of PM Narendra Modi regarding the mismanagement during the vaccination.

As aforementioned, the government is able to do this because it has been granted powers to restrict speech and expression guaranteed under Article 19(1)(a) of the Constitution, Doctrine of Proportionality and the ‘reasonable restrictions’ under Article 19(2). However, these restrictions are not absolute. 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 checks if the measures taken by the State are the least restrictive means to achieve the purpose or not. If they aren’t, then the restriction imposed is quashed using the doctrine above. Similarly, in cases where administrative actions restrict the rights provided under Art.19(1) and 21, the courts act as a primary reviewer and go into the merits of the case while applying the doctrine of proportionality. On similar lines, in the case of Anuradha Bhasin v. Union of India, the importance of proportionality was firmly held concerning the ‘reasonable’ aspect of reasonable restrictions. Thus, the Court made it impermissible for the state to limit the speech and expression of citizens through arbitrary acts like the indefinite shutdown of the internet. Further, the Court opined those restrictions made under s.144 could not be used to suppress the legitimate expression of opinion or grievance or exercise of any democratic rights of Indian citizens.

The Supreme Court rightfully observed in KS Puttaswamy

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….”

Conclusion 

In the outbreak of COVID-19, we have seen how efforts by the government have been made to take out their critics under the name of pandemics, and how the police had made arrests for the people just asking for help on media because the government does not want to get exposed of their failure. But, alongside, there have also been the issues of “fake news”, which creates panic among the people, and despite some effort by the government, there has been no improvement. The government and other state authority should immediately end the excessive restrictions on freedom of speech and expression under the name of preventing measures taken during COVID to ensure peace and harmony among the people.

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