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Mumbai Gag Order: Criticism against the State a crime?

Protest beyond the law is not a departure from democracy; it is absolutely essential to it.- Howard Zinn

The Constitution of India guarantees several fundamental rights to the citizens out of which the right to freedom of speech and expression is comprehensive which should be exercised diligently and not be abused. It cannot be taken as a defence for escaping liability while blatantly harming the sentiments of those in power.

With the advent of the Covid-19 pandemic the Mumbai Police has put in place a gag order under Section 144 of the Criminal Procedure Code (CrPC) which abstains people from criticising the government’s actions and functioning and if anybody flouted the order the said person would be prosecuted as per provisions of Section 188 of the Indian Penal Code (IPC). This article delves into the realm of fundamental right to freedom of speech and expression and reasonable restrictions falling under the purview of Section 144 of the Criminal Procedure Code.

The order hinders the fundamental rights of citizens guaranteed by the Constitution of India.

As a result of which, a Navi Mumbai Resident along with Journalist Rajeev Mishra approached the Bombay High Court vide a petition challenging the said order on the ground that the same is violative of freedom of speech and expression and is liable to be struck down.
The restrictions imposed under Section 144 to be construed as reasonable have to necessarily pass the principles of proportionality and apply the least obtrusive measure.[1]

To test the proportionality of an administrative order, the following conditions have to be adhered to that whether:

  • The measure that is confining the right has a legitimate goal;
  • The restrictions imposed are a prudent way of advancing towards the goal;
  • There is a less confining remedy which could satisfy the purpose;
  • The measure does not have a superfluous effect on the right-holder[2]

Judicial Stance

In Kedar Nath Singh vs. State of Bihar[3], the Apex Court established that mere criticism of the government will not amount to sedition unless it aids in encouraging violence or flouting a public order. Another important case is of Manipur, where Kishorechand Wangkhem who is a journalist was charged with the offence of sedition under the National Security Act for casting criticism against the chief minister. However, he was acquitted as the Court came to the conclusion that citizens are granted the right to criticize by virtue of Article 19(1)(a) of the Constitution.

In the case of ADM Jabalpur vs. Shivakant Shukla[4], commonly referred to as the Habeas Corpus case, was a judgment of the Indian Supreme Court delivered on April 28, 1976 by a 5-judge bench out of which Justice H.R. Khanna was the only dissenter in the case.

The Presidential order had suspended the right of any person to approach the court for grievances arising out of violation of their rights conferred by Articles 14, 21 and 22 of the Constitution and all other pending proceedings consequently would be halted during the National Emergency period.

He elucidated that right to life and personal liberty were not just privileges given by Article 21 of the Constitution which are irrefutable, in fact it is an inseparable principle and cannot be construed as a gift of the Constitution.

He stated that even without Article 21, the State has no power to dispossess a person of his right to life or personal liberty without the authority of law. He further encapsulated Charles Evans Hughes pronouncement, A dissent in a Court of last resort, to use his words, is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting Judge believes the court to have been betrayed.

In another case of S. Rangarajan v. P. Jagjivan Ram[5], it was established that everyone has the right to contour his/her opinion on any general issue.

In the case of Sanmay Banerjee vs. State of West Bengal[6], the Calcutta High Court made a rather interesting observation that citizens have a right to criticize the ruling government. Justice Sabyasachi Bhattacharya of the Calcutta High Court highlighted that The people always have a right to criticize the dispensation running the administration of the country, being the Government or the Executive.

In the course of judgment, the Court also added that:
It is criticism which helps in good governance and keeps a leash on public functionaries, providing a touchstone for the Executive to test the worth of their public endeavours.

Democracy And Dissent

More recently, Supreme Court Judge Justice Deepak Gupta elucidated that Right to Dissent is a necessity in a democratic country like India. This right is a supreme right guaranteed by the Constitution and the right to criticise forms an integral part of the same. A democracy cannot sustain without dissent. He believes that criticism of the various branches of the Government and the Armed Forces cannot be labelled as anti-national. He opined that dissent should be expressed in a fair and tranquil manner and citizens have a right to protest against governmental actions which are unfair or arbitrary.

He further clarified that as long as a person does not flout the law or indulge in a conflict, he has every right to dissent and disseminate his belief. While talking on the topic ‘Democracy and Dissent’ organised by Supreme Court Bar Association (SCBA), he said fair criticism should be encouraged and the judiciary does not supersede criticism.

Additionally, Justice Gupta said, To question, to challenge, to verify, to ask for accountability from the government is the right of every citizen under the Constitution. These rights should never be taken away otherwise. We will become an unquestioning moribund society, which will not be able to develop any further.

Dissent cannot be labelled as anti-national since it has carved its way through crucial times in history. Kautilya expressed dissent towards the Nandas of Magadh who were self-satisfied during Alexander’s invasions. He built the Mauryan empire. The Buddha stood up against the orthodox mindsets of his time. Adi Shankara dissented against the diminishing of sanatana dharma and restored it. Shivaji expressed dissent against the Deccan kingdoms and the Mughal empire to establish the Maratha empire. The First War of Independence in 1857 was credited to the dissenting soldiers at Barrackpore and Meerut. A whole lot of dissenters from Lokmanya Tilak to Nehru, Gandhi and Bose embarked us on our path to an Independent India. Dr. Ambedkar, who dissented from Gandhi, gifted us a Constitution that has persisted all these years.

Recently, the High Court of Gujarat made some significant observations on the right to criticise the State Government during the breakout of Covid-19. The order has recognized the fact that cooperation, mutual understanding and fair criticism are vigorous tools to combat the pandemic. In an attempt towards minimalizing the spread of false news of the virus, the order states that those who cannot extend their helping hand in this difficult time have no right to criticize. This statement itself will attract criticism as the right to criticize the government is a democratic right which cannot be conditional.

Conclusion
Dissenter and democracy are the two sides of a coin and one cannot exist without the other. Unfettered men through exercising free thought will give path to free speech. The Constitution of India enables all its citizens to express their opinion on any matter and a democracy should in fact encourage and support the voice of the citizens.

The Coronavirus pandemic has reversed the functioning of the whole world and we all are in for a long haul. The state governments in an attempt to prevent dissemination of false news and chaos that follows are adopting measures to deter the same. However, the gag order issued in Maharashtra is too rigid and consequently hampers the fundamental rights of the citizens. In a free country like India, fair criticism should be encouraged and not suppressed.

End-Notes:

  1. Anuradha Bhasin vs. Union of India, W.P (C) No. 1031/2019
  2. Modern Dental College and Research Centre and Ors. vs. State of Madhya Pradesh and Ors. (2016) 7 SCC 353
  3. AIR 1962 SC 955
  4. 1976 AIR 1207
  5. 1989 SCR (2) 204
  6. W.P. No.21526 (W) of 2019

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