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Crisis of Free Speech in COVID-19

Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.- John Milton

Abstract
As India becomes a Republic with a Constitution, it silently brought individuals and their freedom at the centre. The State provided them with various rights like Freedom of Speech and Expression with reasonable restrictions. In the Pandemic, the State used its power arbitrarily posing various questions on the basis of being a Democracy and a Republic.

This article has focuses on issues of freedom brought by the pandemic, whose criticism is curtailed unreasonably. Further, perspective of Honourable Courts of India has been presented. It contains a few sagacious solutions which is concluded with firm belief in ideals of Constitutionalism.

Introduction
India, being the largest democracy of the world, functions on the principles upheld in the Constitution of India. The Constitution vests immense power in the citizens of the country. The Constitution begins with ‘We, the people’ who have adopted, enacted and given themselves the Constitution of India. The phrase itself contains the essence that the country is not only run for the people but by the people as well. Article 19 of the Constitution, provides citizens with the right to express their views without fear or fervor.

At the same time, the freedom is curbed by Article 19[2] which allows the authorities to put reasonable restrictions on the speech and expression of its citizens for upholding the security, integrity, safety and public order in the country.

Crises call for reasonable restrictions, to protect the security and integrity of the country. The power vested in Article 19[2] calls for regulation not suspension. The restriction relates to moderation of expression to prevent spread of misinformation and chaos in the country. But, the power of the government to put reasonable restrictions is being misused by administration.

People are being robbed of their right to talk, to express, to criticize the government they elected. Constitutional Law protects the right of citizens to propagate their views as well as publish the views of other people. The current Corona Virus Pandemic has brought to light the inhumane and power thirsty nature of the government. The current article aims to look into the current scenario of the curb on freedom of speech and express and also suggests some solutions for the same.

Current Scenario
Coronavirus pandemic has been ravaging the country for an entire year. The country had more than nine months to develop its health systems and infrastructure. The system remains the same, while the economic burden born by the government is gigantic. Instead, the authorities started celebrating their victory over the first wave and left the signs of a surging second wave unnoticed. Election campaigning and the vote banks were given more importance than the pressing problems encountered by the health infrastructure.

With the second wave being more ruthless, more prevalent, more disheartening and more widespread than the first wave. With every greatest of harm comes greatest of responsibilities. The government now had the responsibility to take care of its citizens, not just physically but mentally as well. Under the wide interpretation of the Constitution of India, Health has been considered a Fundamental Right guaranteed under Article 21 of the Constitution.

The same was upheld by the honorable Supreme Court in Consumer Education & Research Centre v. UOI1. While people were locked in the safety of their homes, and the world around them was turning into a mound of dead. Humans with the essence of civilization has learnt to be together and fight for a single thing. This rage accompanied by a similar situation and the government being ignorant of the same made people to look into social media, press and protests and also to stand in solidarity.

Finding leads on Instagram, posting resources on Twitter and criticizing the government on WhatsApp. People started doing what the government could not. Social Media became the COVID-19 helpline. Long waiting lines, and helpless scarcity of resources was reduced by people providing verified leads.
The Government took cognizance of the same in the most unexpected and unworthy manner. Instead of channelizing people’s energy and leads in an official manner, the government banned their moves. Scarring the Constitutional provision of freedom of expression, the Government banned accounts, took down posts, and the most reasonable form, made them caught up in criminal cases.

The most recent incident that signifies the same, is the statement of honourable Chief Minister of Uttar Pradesh, Yogi Adityanath, declared to the media that there is ‘No shortage of Oxygen in the State.’ This was said when the number of people dying due to oxygen scarcity was on the rise. Rallies were a super-spreader with the data showing that positive cases increased with the rate of almost 150% in States rallies were held for which no one was ready.

Denying all the statistics and the current condition of the State. The Chief Minister acclaimed, Seize the property of anyone who tries to spread rumours about oxygen shortage. This was a direct threat to the Constitutional Law and Fundamental Right of Freedom of Speech and Expression. A direct threat to the youth who wanted to help their fellow countrymen in the times of crisis. Article 19[2] gives the State to impose reasonable restrictions.

But, charging people with Sedition and unable to prove them in Court with seizure of their property are in no way comes under reasonable restrictions available to the State. They are threats to the very soul of Constitution and Fundamental Freedom Constitution seeks to provide its citizens by putting lothem above the State. Shashank Yadav who sorted to Twitter to call out for help in arranging Oxygen Cylinder for his grandfather had an FIR registered against his name in Amethi.

People of Delhi were stripped off with the similar freedom where they were resorting for help. The curbs suggest sheer autocracy of the government officials. Not being able to handle crisis on their own and booking people for acts that are protected by the Constitution, is causing an indirect fall of the democracy. Restraints are acceptable, but censorship goes against the spirit of the Constitution.

The curb is not limited to certain states moving towards an extremist approach. The condition is similar throughout the country. The words reasonable and proportional as held in KS Puttaswamy vs UOI 2, are being flouted by the authorities in every manner possible. People being booked under Sedition Law, for expressing their disagreement to the ravaging policies. Condemning political rallies, religious congregations, and incompetency of the Government have been banned instead of regulated.

The case of Siddhartha Vadaranjan being directed by the court not to continue posting his ideas against the Government on Facebook was an early example of violating the principles of Constitutional law in April 2020. This goes against the principle of Constitutional validity of freedom of speech and expression. The Calcutta High Court bench has held that Article 19 has to be scrupulously upheld by the State even if an expression of opinion brings the Government to disrepute.3

The country with its recent power plays is at the brink of collapsing against the Constitutional Law principles. Judicial intervention is needed for the country to be saved. Fundamental Rights bestowed upon the individuals to uphold the democracy in place are now being robbed from them. The government which is elected by the people to govern them and who they legitimize the power they are hungry to taste was banning and restricting those citizens from criticizing themselves. Holding the State liable for not fulfilling its responsibilities is now a crime than the very basis of power being a necessity set in the Constitution of India.

Judicial and Legal Perspective
Honorable courts of India have shown a mixed approach towards the violation of Fundamental Rights and the incompetence of the Government. On one hand where the courts have been vocal about not being a mute spectator take a staunch stand for the expressing their views freely and the government failing on its part.

The case of Arundhati Roy Vs Union of India 4, laid down how the government can impose “reasonable restrictions” on the freedom of speech and expression of its citizens. The pandemic has seen how the word reasonable has been misused by the government during the pandemic. Twitter the place, where people came forward to help each other are having themselves booked with FIRs. Electronic media being self-regulated is seen as an opportunity by the authorities to misuse.

However, it is the courts that have kept the hopes of people alive. The recent judgements passed by Allahabad High Court, Delhi High Court and the Supreme Court make the citizens believe in the Constitutional Law. It is the Courts that have made the people believe, that the country can still work on the constitutional principles. Listening to a petition of Max Hospital for shortage of oxygen and the venting of people on social media Delhi High Court provided a stinging remark on the Central Government. "Why Centre not waking up to gravity of situation? We are shocked and dismayed hospitals running out of oxygen but steel plants running."

There was meeting of premium government officials on 1st April of last month about the oxygen shortage India is capable of facing and the same being highly critical to fight with the virus and save the lives of affected people. It was the court that made it clear in its decisions that though Health is in the state list, it is the responsibility of both the State and the Centre to ensure a steady Oxygen supply all around the country.

This again was a celebration on the part of the citizens of the country. The cries of the people while searching for resources and feeling helpless each time a hospital denies them entry. It marks the failure of the State in doing its duty, along with the failure on part of Constitutional provisions. The Delhi Government was directed to show availability of beds and hospitals in an online platform, to prevent ruckus, increase accountability and above all save lives.

The government however has been discrediting the Courts even in the times of pandemic. The disheartening cries of people and the curb on freedom of expression and speech is being heard by the Courts. The overburdened courts are giving priority to pandemic cases and keeping the hopes of people in the Constitutional law alive. Still, the State is being ignorant in fulfilling its duties which is making people question the very essence of being Democracy and a Nation.

Solution
The solution of the problem is right in front of the people, that is the Constitution of India. It is the Constitutional Law that is being violated in the pandemic and it is the same that has answers for the problem. When the Fundamental Rights themselves come forward with the principle is ‘reasonable restrictions.’ As it was held in Chintaman Rao vs State of Madhya Pradesh5, limitations imposed should not be arbitrary or of excessive nature. It should not be beyond what is required in the interests of the people. The authorities must be open to criticism instead of restricting free speech.

Criticism makes a democracy stronger. Justice DY Chandrachud while taking suo motto cognizance over the cases pertaining to COVID-19 said, “If citizens communicate their grievance on social media and internet, then it cannot be said it’s wrong information.” The faith in Constitutional Law can only be revived through proper implementation which hasn’t happened even after seventy-one years of being a Republic.

It is necessary for the people to indulge in conversations about the same. Criticism and conversations are necessary at all times, it isn’t justifiable to give away Fundamental Rights, just because “this isn’t the right time” Holding people accountable would not only help vent anger, but also help the country to work on the suggestions.

Electronic media and Social Media sites should not affiliate themselves with any sides and act as an epitome of freedom. Twisting facts to suit their purpose along with Yellow Journalism is creating a havoc in the society. It is high time when regulations are brought in place without disrupting the facts in the state. Staying silent in fear of repercussions is no solution to the problem. Expressing while standing in solidarity is something what will keep the principles of the Constitution alive along with the democratic spirit of the country.

Through the second wave, an extreme emphasis on the fact that Heath is a subject under the State List has been made by the authorities. But health has also been regarded as a Fundamental Right, under Article 21, The Right to Life,.6 This, keeps the State and the Central Governments at an equal stand in handling the crisis at hand.

Citizens can file a Public Interest Litigation, regarding the escape of liability and responsibility by the Government. As the State, is the giveth & taketh of any FRs, it hasn't recognized and took relevant measures on this behalf which is a catalyst for the condition we are facing. This is a paragon in failure of its responsibilities towards its people. Demanding answers is the most plausible solution citizens have to save the country from burning into ashes.

Conclusion
Fundamental Rights are the soul of the country. Freedom of Speech and Expression guaranteed under Article 19 of the Constitution is the principle that keeps the spirit of democracy in India alive. Implementation of laws is necessary in the pandemic; however, autocracy is not what is expected.

The Doctrine of Proportionality needs to be maintained by upholding the Freedom of Speech and Expression and subjecting the citizens to reasonable restrictions.

In the words of Prof. Faizan Mustafa:
India doesn't need a Written Constitution but, Constitutionalism.

End-Notes:
  1. 1995 AIR SC 922
  2. (2017) 10 SCC 1.
  3. Dr. Indranil Khan v. State of West Bengal & Ors., W.P. 5326(W) 2020.
  4. AIR 2002 SC 1375.
  5. 1951 AIR 118.
  6. Consumer Education & Research Centre v UOI 1995 AIR SC 922.

    Award Winning Article Is Written By: Mr.Mansvi Singh & Ms.Aditi Singh
    Awarded certificate of Excellence
    Authentication No: MA113327195554-13-0521

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