FREEDOM OF SPEECH AND EXPRESSION DURING COVID19
“Governments should counter Covid-19 by encouraging people to mask up, not shut up,” said Gerry Simpson, associate crisis and conflict director at Human Rights Watch.
Freedom of expression and information and media freedom are crucial for the functioning of a truly democratic society and continue to be so in times of crisis. Various governments have attacked, detained and prosecuted the journalists and activists, even in some cases killed critics and enacted laws criminalizing speech that they claim to threaten public health. The United Nations Human Rights Council should focus on states to comply with the human right obligations during COVID-19 and its impact on freedom of speech and expression.
The heroic story of Li Wenliang, the Chinese whistle-blower doctor, shows the danger of suppressing free flow of information of vital importance. Likewise, it is unacceptable to use the epidemic as a pretext to silence the political opponents of the current government.
The Constitution of India clearly states individual rights regarding freedom of speech and expression as mentioned above. It also reiterates right to privacy and right to information. Every individual has right to information and that includes true information from verified sources. But, the journalists and activists cannot publish any essential information regarding the COVID-19 pandemic apart from government facts and figures. It is for you to decide whether right to information prevailed or not. Indian laws do not consist of the provisions relating to fake news. COVID-19 pandemic is a challenge to the healthcare system of the country on one hand and media houses on the other. Laws that are enforced during such unprecedented times are discussed below.
FAKE NEWS AND COVID-19
Freedom of expression is mentioned in the preamble of India’s Constitution and is protected as one of several fundamental rights under Part III, article 19(1) (a), which states that “All citizens shall have the right to freedom of speech and expression.” 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 in relation to contempt of court, defamation or incitement to an offence.” Article 358 of the Constitution relates to the suspension of rights under article 19 during a declared emergency, and article 359 provides the procedure for suspending enforcement of the fundamental rights conferred by Part III “during emergencies.”
The Constitution of India clearly states individual rights regarding freedom of speech and expression as mentioned above. It also reiterates right to privacy and right to information. Every individual has right to information and that includes true information from verified sources. But, the journalists and activists cannot publish any essential information regarding the COVID-19 pandemic apart from government facts and figures. It is for you to decide whether right to information prevailed or not. Indian laws do not consist of the provisions relating to fake news. However, various laws criminalize certain forms of speech that may constitute fake news and it is also applicable to the cases that involve spread of the fake news. Section 505 of Indian Penal Code, 1857 that prohibits statements conducing to public mischief” and subjects to a prison or fine whoever makes, publishes or circulates any statement, rumor or report with intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility.”
Fake news is an issue that needs to be addressed not only regarding COVID-19 pandemic but otherwise also. Therefore, enforcing laws regarding freedom of speech and expression will not solve the issue rather suppress it. It needs to be tackled at ground level. Every published information shall mention its verified source that will help the citizens of the country.
At the beginning, in February 2020, the Union government was advising “relevant agencies” of the states and union territories to take appropriate action to “avoid the spread of fake news, advisories, rumors and unnecessary information through proper media management.
Even though fake news was spreading like fire in the entire country and the major source of the same was social media and due to that in April 2020, news reports indicated that around 640 cases have been lodged across the country allegedly involving fake news, rumors and spread of misinformation via social media. Governments at union and state level invoked the Epidemic Diseased Act of 1897 and the Disaster Managements Act, 2005 to deal with the COVID-19 epidemic. Section 54 of the Disaster Management Act stipulated regarding misinformation and fake news.
It states, “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 fine.” Several other laws like Section 69A of Information Technology Act was also implemented in order to deal with fake news.
Free speech activists complained that these nationwide arrests were made under the Epidemic Diseases Act, 1897, several sections of the Indian Penal Code, and the Disaster Management Act, 2005, “to curb criticism against authorities in the name of the health care emergency.” Apar Gupta, a lawyer and internet freedom activist was quoted in the news report as saying.
Sometimes criticism of lack of preparedness or of certain local issues has also resulted in people being booked. Some of these social media posts fall within the permissible limit of freedom of speech under the Constitution. However, state governments are using a high degree of power that goes beyond public health issues to serve the government’s political objective.
This is the matter of grave concern. I do hereby acknowledge the fact that fake news and misinformation during the pandemic was not helping the citizens of the country rather it was discouraged. But, the information that is required to reach people is also being held in light of such laws. Every individual has right to raise concerns regarding lack of preparedness of the government in reference to the required resources in the country like oxygen. It has been a difficult year for the country emotionally, mentally and financially. The government shall formulate policies and empathize with citizens of the country rather than searching for ways to devoid them of relevant information. Constant suppressing the existence of such deadly virus in China plagued the battle of COVID-19. Due to that the world is paying high price in terms of this outbreak. The pandemic has provided the fertile ground for government speech and expression. The recent case of Dr. Indranil Khan, FIR against Siddharth Vardarajan and other cases was regarding restraining of speech and expression over coronavirus outbreak in the country. Repeatedly since last year the government has been violating rights of the citizens with the help of vague laws. 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. 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, it appears that the courts claiming to protect right of speech and expression of individuals are doing more harm than good. As in the case of Dr. Khan, the court prohibited him from making any further Facebook posts in regard to the question in matter till the time investigations were completed. In the process, the clamped down freedom of speech and expression, it appears to be champion. The Supreme Court of the country above all shall uphold the right of Freedom of Speech and Expression.
Well, it is doing that on paper but in reality it seems to be somewhat different. The journalistic standards of the country have been declining since years now. But we have reached a new low after this pandemic. Print media and television media are somewhat biased. The decision of choosing a side is suppose to be in the hand of the citizens.
The media houses were also direction by the apex court that only official information and figures are to be published regarding COVID-19 pandemic. Dealing with the situation at hand does not seem to be the major concern of the authorities. National Disaster Management Authority, 2005 deals with the subjectivity that Section 6(1) of the act 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.
The questionable aspect of the NDMA, 2005 is that free speech is falling prey. The act allows that government to impose restriction regarding free speech without clarification and appropriate measures. It empowers government with an enormous.
Do you think it is justified that after imposition of lockdown and section 144 of Criminal Procedure Code the fundamental right of an individual be curtailed? Isn’t it important for the citizens of the country to know the real position of the country and measures taken y the government regarding them? Don’t you think NDMA, 2005 and EDM Act shall also include the clause regarding freedom of speech and expression?
In such unprecedented times, the government is empowered with wide ranging powers that curtail speech and expression that is guaranteed under Article 19(1) (a) of the Indian Constitution. Article 19(2) of the Indian Constitution deals with Doctrine of Proportionality and reasonability and these are considered to be the touchstones based on which the government action are measured.
The outbreak of COVID-19 pandemic has incidentally resulted weakening of fundamental rights. We all know that social media platforms act as an essential platform for news and information and where dissemination of information is at rapid rate. As we all know, various independent journalists and freelancers provide news and information on social media platforms that is contradictory to the government facts and figures. Citizens of the country not only share such information further but also denounce the government for its adverse steps. In a ways, the dissent of citizens keeps the government action in check. The citizens have been critical of the government due to lack of healthcare facilities and other resources. The response of the government towards pandemic in the largest democracy of the world has been somewhat disappointing. The decisions like Election rallies, kumbh mela and other religious practices during COVID-19 pandemic were discouraged. The Constitution of India does not prevail entirely during the pandemic as Section 144 of Criminal Procedure Code has been enforced in most parts of the country. It has been difficult time for every individual of the country. First lockdown of the country was imposed within notice of 4 hours that led to migrant worker chaos throughout. The government was trying to remedy the situation at ground level but it shall be ensured that free flow of information continues in order to protect civil and political rights of an individual.
Pertinent guidance may be found in the Council of Europe Guidelines on protecting freedom of expression and information in times of crisis
Indian Constitution Article 19(1)(a)
Article 358 & 359Section 505 of Indian Penal Code
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.
Section 54 of Disaster Management Act, 2005
The Rights and Risks Analysis Group (RRAG), India: Media’s Crackdown During COVID-19 Lockdown (June 15, 2020), https://perma.cc/7EL2-8KJ4.
INTERN AT S. BHAMBRI & ASSOCIATES (APRIL)