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(Jhalak Gupta and Ritvik Maheshwari are second year students of National Law University, Odisha) In shadow of the outbreak of pandemic COVID-19, Uddhav Thackeray led Maharashtra Government released an arbitrary order, effective from May 25th to June 8th which uses euphemistic words to rule out any criticism against the government by allowing initiation of legal actions against the person who tries to use his/her freedom of expression. Any person posting or sharing information that is capable of causing unrest in the Mumbai City against the government will be penalized. This gag order caught the attention of the whole country because of its arbitrary nature. Justifying the mischievous act of government, the police stated that the action was necessary to curb the “animosity created in the state due to COVID-19 pandemic”. The said order derives its power from section 144 of the Criminal Procedure Code (CrPC) and the person will be charged under section 108 of the Indian Penal Code (IPC). Section 144: Curfew of fundamental rights?
Section 144 of the CrPC is one of the main tools used by the State to preserve public peace by allowing the District Magistrate to order any person to “abstain from a certain act” or to “take certain order with respect to certain property in his possession or under his management” to prevent public disorder or from any potential danger or threat in the state. While invoking this section the Magistrate has to look into the gravity of the prevailing situation and then impose restrictions proportionally. However, the gag order in Mumbai authorizing the Magistrate to prohibit a citizen from having a dissenting/contrary opinion defeats the purpose of the very provision and it is not only illegal but also disproportionate and intrusive, violating the “principle of proportionality”, which was recently applied by the SC in the case of Anuradha Bhasin v Union of India. In this judgement the objective of the proportionality doctrine is described as “to strike a balance between the liberty and security concerns so that the right to life is secured and enjoyed by the citizens in the best possible manner”, which is evidently defeated by this order as it curtails the fundamental right to freedom of speech and expression of the citizens. The notice issued on May 23 by the Mumbai Police seeks to suppress the voices of the ordinary citizens and prohibits them from opposing the mishandling of the pandemic by the authorities. The order is absolutely ambiguous in the sense that the authorities do not have guidelines for its execution or implementation, so it causes unjustified and extreme gagging effect on freedom of speech. The Constitution of India protects the dissenting/opposing views of the citizens and the government cannot restrict such discussions or criticisms in any form, therefore such criticism cannot be used as a ground for invoking section 144 of CrPC, because the orders passed under this section have a direct effect on fundamental rights and if dealt casually, would lead to gross inequality in the society. Therefore, in light of the above-mentioned precedents, the gag order can be said to be prima facie illegal. It is not permitted to suspend a fundamental right under the guise of “reasonable restrictions” and is also beyond the scope of section 144 of CrPC, as the Magistrate does not have such wide and unbridled powers. Can gag order be termed as a temporary section 66A of IT Act? The present scenario somewhat resonates with the incidents that took place in Shreya Singhal v Union of India, wherein two ladies were arrested for posting some comments over a social media website which were allegedly objectionable and offensive towards the government. They were arrested under Section 66A of Information Technology Act, 2000 (hereinafter "ITA") which restricts a person from sending any information through a computer resource or communication device that is highly offensive or is send with the intent to cause inconvenience, insult, annoyance, danger, injury, ill will or hatred. It was contended that section 66A of ITA is unconstitutional as it violates freedom of speech and expression and falls outside the purview of Article 19(2) of the Indian Constitution, which lays out reasonable restrictions on the fundamental rights. The Apex Court while deciding the Shreya Singhal Case observed that section 66A of ITA is being misused by the police and is clearly violative of the freedom of speech and expression guaranteed under Article 19(1)(a) of Indian Constitution. It is true that the scenario here is different from that of Shreya Singhal. However, by issuing the said order, the government is trying to invoke a temporary Section 66A of ITA. One of the reasons behind revoking section 66A of ITA was that it laid no reasonable standard to define guilt which creates an offense and hence, was vague. Its vagueness made it open-ended for the police to arrest a person of their choice. The same is the case with the present order in question; therefore, the government cannot take the defense of COVID-19 for satisfying their whims and fancies by invoking a similar law which has been held unconstitutional by the Supreme Court i.e. section 66A of IT Act. Mumbai’s need or a continuing trend? In Mumbai, such prohibitory orders have been continuing for nearly three decades, without specifying the need for the same. However, since last December, the nature of these prohibitory orders has also changed in Maharashtra state, and the police have been more stringent in their use, primarily to prevent any kind of dissent against the Citizenship Amendment Act, the National Citizens' Register and the National Population Register (NPR). For instance, in January, police had enforced Section 144 to ban the city's Queer Pride March. The march had aimed to go beyond the purview of gender and ethnicity and answer concerns about the CAA, NRC, and NPR as well. Disrupted by this plan, police had used Section 144 of CrPC to deny them permission for a march. Basically, such orders indirectly ban all the potential criticism made by the citizens against the Maharashtra government by invoking section 144 of CrPC. But they have failed to understand that the basic pillar for the smooth functioning of state is criticism, which is very important to explore the current and potential areas of improvement. Such recklessness can be also witnessed in the interview where Mr. Aaditya Thackeray, a minister in the Maharashtra government had stated that the most worrying aspect of the pandemic in Maharashtra is the ‘hate’ allegedly perpetrated on social media. Furthermore, after the issuance of the order, the Mumbai police had registered 73 offenses had arrested a total of 39 accused since March Conclusion It is appalling how in a grim situation like this when the total number of corona virus cases has crossed the 5,60,000 mark in Mumbai, contributing to almost half of the total cases of corona virus in the country, the state administration, instead of thinking on how to tackle the scourge, has been putting all its efforts to penalize the social media detractors. In order to tackle such a situation in the future, there is a need to bring a legislative amendment in section 144 of CrPC and limit the powers of Magistrate. In the present case, the magistrate is seen using very vast powers which is dangerous. It is inappropriate to give such powers in the hands of a person who can be easily influenced by the Government in power. One alternative to this could be that such an order must be approved by the High Court before enforcing. High Court would be an appropriate authority to keep a check on the powers of magistrate which he derives from section 144 of CrPC. One more alternative could be amending the language of section 144 of CrPC in such a way that it will narrow down the powers of magistrate and the language must be made explicit in order to remove the vagueness because vagueness in the legislation leaves the scope for misusing it. Further, the order was no longer extended after 8th June and the petition filed in Bombay High Court was heard on 9th June therefore held to be infructuous and was thereby disposed of on 23rd June. The decision of not extending the gag order was stated by the attorney during the hearing. No reasons were provided for the same because it was in effect for a particular period of time, which was expired.
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