By:- Vishal Patidar
The privilege of free speech and expression is an intrinsic natural right, second only to the need to live. In a democracy wherein individuals are independent, it is viewed as the primary prerequisite of liberty. Be a result, it is referred to as the “cornerstone of democracy.” The rise of technical innovations including e-newspapers, questionnaires, opinion surveys, and Twitter posts, as well as the rising significance of media, have increased information accessibility, thereby expanding the domain of media. Individuals are being ordered to stay at home as a precautionary measure due to a massive pandemic of the coronavirus, which has seen a huge spike in COVID 19 cases and a corresponding spike in death rate, as well as the economy plunging through the floor. People’s minds get worried during these crises, and they believe the most nonsensical things.
As a result, the likelihood of misinformation, fake news, and hoaxes spreading is increased. And attempting to make the virus fight more difficult. During this point, the government enacted a slew of restrictive regulations on free expression. As a result, an open platform for previous content restrictions exists, posing a danger to the lawful communication of one’s diverse ideas. As a result, the purpose of this article is to examine the appropriateness and fundamental flaws in the legislation governing freedom of speech and expression, as well as the impact of disinformation, during the COVID-19 epidemic.
Freedom of Speech and Expression
Across several areas of the globe, the Covid 19 pandemic has weakened fundamental rights just like freedom of expression, access to knowledge, and right to privacy. Furthermore, several countries have proclaimed states of emergency, imposing extra limitations on freedom of expression.
In India, freedom of expression is stated in the preamble of the constitution and is also included as among the basic rights in Part III of the constitution, Article 19(1)(a), which reads that “all people shall enjoy the right to freedom of speech and expression”. This privilege, however, is not unconditional and is subject to certain restrictions mentioned under Article 19(2) which states, “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.”
However, in the case of Sakal Papers vs. Union of India, where a private newspaper firm filed a lawsuit against the state, contesting the state’s publishing rule, which limited the number of pages a paper could publish. The firm challenged the constitutionality of the “Newspaper (Price and Page) Act of 1956”, which gave the government the ability to regulate the cost of newspapers in connection to their pages as well as the distribution of advertisements.
The firm further claimed that the state’s “Daily Newspapers (Price and Page) Order, 1960”, enacted under the Newspaper Act to implement such regulations, infringes on the right to freedom of speech and expression granted by Article 19(1)(a) of the Indian Constitution. The court in the above case said that although these privileges are not unconditional, they cannot be limited to the public good.
As a result, the government cannot enact legislation that explicitly limits one’s liberty to ensure the greater enjoyment of another. Besides that, the supreme court in the landmark judgement of the Shreya Singhal vs. Union of India again reiterated that any restrictions placed must not be arbitrary or go beyond what is necessary for the public interest.
Spread of False Information Regarding Covid 19
The role of the media in disseminating knowledge, facts, and opinions too as many individuals have been critical. Nevertheless, as a result of the Covid 19 outbreak, an increasing number of individuals are being compelled to look for information on the coronavirus and its illness. As a result, they’ve become swamped by the news they’ve received in return. False information has become a major concern throughout this period, frequently generating public uncertainty and fear, leading to turmoil.
A similar level of ambiguity was formed at the beginning of the outbreak by a couple of healthcare professionals, whose differing viewpoints and shortage of genuine information had formed a dangerous situation. Due to a couple of such statements, the country saw an unexpected increase in demand for PPE accessories, and alcohol-based sanitizers, resulting in a price increase and scarcity in various clinical facilities. Furthermore, social media is infamous for propagating and disseminating “false information” and “false news.” Regrettably, it has lowered the value of genuine news. As there is so much false news about COVID-19, it might be problematic for those without the correct knowledge to tell the correct one from the incorrect.
Moreover, false information concerning COVID therapy has resulted in the misuse of some medications, which are harming patients’ various body parts. As a result, the right to freedom of speech and expression is limited in the case of combating false information. The intensity of the spread of misinformation increased as a result of COVID-19, which defined it as a stream of infodemic, or an abundance of knowledge on an issue that makes it impossible to determine which is real or incorrect. In addition, Tedros Adhenom, Director-General of the World Health Organization, said, “We are not just fighting an epidemic; we are fighting an infodemic.
Fake news spreads faster and more easily than this virus, and is just as dangerous.” False Information has caused various devastating effects in the nation as because of the fear of false information, migrant workers have been forced to walk back to their village. The shutdown has been in place for a very considerable amount of time. The migrant labourers suffered greatly as a result of this, and many even died as a result of hunger and other causes.
Secondly, People who attended the Tablighi Jamaat spiritual assembly in Delhi were socially stigmatised in early March 2020, including tags like Islamophobic, Corona Jihad, and NizamuddinIdiots, etc. filling social media networks in response. Videos and false films presented a serious threat to their right to life, dignity, personal liberty, and freedom from religious discrimination, as contained in Indian Constitution Articles 21 and Article 15.
Thirdly, In the early days of the shutdown, deceptive social media messages that gave the erroneous impression that Covid 19 was spreading via chicken reduced poultry sales by half. These types of news and information tend to create a lot of ruckus and instability in the nation, especially among the lower-income groups and ruler households.
Legal Provision Applicable in the Light of Covid 19 Pandemic
So, does the current status of the laws intended to explicitly address COVID-19 in terms of freedom of speech and expression?
The National Disaster Management Authority Act of 2005, the Epidemic Diseases Act of 1897 and the states’ interpretations of Section 144 of the Code of Criminal Procedure are now being used as instruments during the lockdown. In such a circumstance, it’s critical to examine what each legislation says regarding limits on free expression.
The NDMA, which went into effect in 2005, allows for a considerable level of subjectivity. While the Act does not go into detail on the right to free speech during national catastrophes. Section 6(1) empowers the National Authority to establish disaster management policies, plans, and guidelines. This language provides it with a very broad range of authority, allowing the National Authority to issue regulations and guidelines on speech and expression on a case-by-case or time-to-time basis.
This might have been done by guidelines to the Act. The state authorities have comparable rights under Section 18(1) as this section provides the state administration with the responsibility to bring in the policies and plans to mitigate the disaster in the state. In addition, Section 35(1) empowers the Center to adopt any disaster-prevention actions it considers necessary.
The Act’s most concerning feature is that without definite explanation, it allows the government to take broad actions, such as restricting free expression, in the name of disaster relief. Thus, this is the part where free expression is most likely to be harmed. Section 54 also imposes a punishment for disseminating a false warning or alert about a calamity, its severity or extent, which causes fear.
The Epidemic Disease Act of 1897 gives governments broad authority to take extraordinary measures and impose restrictions to prevent the spread of severe epidemic illnesses. Despite the fact that it makes no particular mention of speech and expression, it appears to me that the government may utilize its powers under this act to prevent scenarios like the Nazimuddin Markaz incident in such a setting.
Section 144, on the other hand, allows a District Magistrate, a Sub-Divisional Magistrate, or any other Executive Magistrate empowered by the state government to order anyone to refrain from doing something that is likely to cause hindrances to anyone who is lawfully employed, or a threat to human life, health, or safety, or a general disturbance of the public order.
This creates a grey area in which it is mainly up to the Executive’s subjective judgement to determine whether or not conduct represents a threat to public order. This ‘act’ might as well be understood as a person’s or company’s words and expression. As a result, Section 144 might be abused to suppress free speech and expression.
Recently Judicial Development in the Light of Covid 19
The Indian courts have had a varied response to the infringement of constitutional freedoms and the state’s inefficiency. On one side, the judiciary had been loud about not being a bystander and had taken a strong stance in favour of people freely voicing their opinion and the government’s failure to do so. In the recent case of Dr Indranil Khan vs. State of West Bengal and Ors., the Calcutta High Court issued the judgement instructing the policemen to give his cell phone and SIM card as soon as possible, as well as prohibiting any further questioning without the permission of a legitimate court.
In the same case the court said that even if a statement of ideas puts the administration into contempt, the administration must uphold the freedom of speech and expression guaranteed by Article 19 of the Indian Constitution. The authorities cannot be used by the government to suppress criticism.
Similarly, in the suo-moto cognizance taken by the supreme court In Re: Distribution of Essential Supplies and Services During Pandemic, the court instructed the Union and state governments not to press charges on persons who are publicising their issues on social media sites to obtain treatment, and that if they do, the judiciary would be forced to utilise the power they have.
This decision was made when people were arrested and legal action was taken against them for exposing the administration’s mishandling and shortcomings. Hence, in a time of crisis whenever the government tried to use its power arbitrarily, it was our judiciary that came to rescue and time and again made the government realize the limit of their statutory powers.
Due to the high number of day-to-day notifications of various discoveries and comments from scientists and healthcare professionals in the wake of the Covid outbreak in the country, there’s no standard framework. In the absence of clear laws on misinformation in the country, it is hard to differentiate between reality and misinformation. As a result, placing such limits on free expression in general, resulting in the silencing of critique and public discourse in the pretext of healthcare emergency tactics, does not appear to be appropriate.
There must be an equilibrium between personal liberty and government security precautions. In light of these situations, effective laws concerned with false information is required. At the same time, the citizens also have certain responsibility while making use of their rights and should not indulge in any propaganda which may tend to create any unrest in the country.
Vishal Patidar is a first-year law student at Narsee Monjee Institute of Management Studies (NMIMS) Navi Mumbai campus, currently pursuing a BA.LL. B (Hons).