The deputy Commissioner of Police, Greater Mumbai in an attempt to curb misinformation on social media platforms during lockdown, in continuation of the earlier prohibitory order has reissued a similar verbatim order, which was first issued on April 10, and continued till April 25. The present prohibitory order is operative from 25th May, 2020 till 8th June, 2020.
The order seeks to prohibit dissemination of such information through social media platforms that causes panic and confusion, is found to be derogatory and discriminatory towards a particular community or incites “mistrust” towards government functionaries and their actions taken in order to prevent the COVID-19 spread, and thereby causing danger to human health or safety or disturbance to the public tranquility. The order contains that person designated as ”Admin” on a messaging or social media platform “shall be personally responsible for any such information being disseminated from a group administered by them.” Any person contravening the order will be prosecuted under Section 188 of the IPC. From the bare reading it is clear that the prohibitory order travels beyond the scope and mandate of the section 144 CR.P.C, and prima facie unreasonable and suffers from legal and constitutional infirmities.
Invoking Section 144 of the CR.P.C
Section 144 of the CR.P.C is too broad and the words of the section are wide enough to give ample power to the authorities to be used without any reasonable restrictions in cases of apprehension of danger to human life, safety, public tranquility. The prohibitory order intends to restrict the activities of individual and general public from communicating/sharing/circulating misinformation on social media platform or criticising government functionaries actions during COVID-19. The order applies to all the residents of Mumbai, who uses social media apps or an admin of any group of social media.
The Execuitive Magistrate while invoking power u/s 144 CR.P.C, must not apply a straight jacket formula without assessing the gravity of the prevailing circumstances; the restrictions must be proportionate to the situation concerned. The Executive Magistrate cannot pass order u/s 144 in anticipation or on the basis of a mere apprehension. The order of the Dy. Commissioner is equivalent to a blanket ban, wherein, citizen rights are curtailed and they are prohibited to comment on the actions of the Government functionaries during COVID-19.
From past few years, there has been a trend to use S. 144 CR.P.C by the States and local administration to restrict people from protesting or to shut internet, because of which there can be a law and order situation, i.e. CAA protests, J&K internet shut down, situation during Ayodhya judgement. The judicial precedents on Section 144 CR.P.C, highlights that restriction must be reasonable and cannot curtail individual rights of legitimate expressions under the Constitution and its subject to judicial review.
In Madhu Limaye and Anr v. Ved Murti and Ors. ((1970) 3 SCC 746), the Court held that if the action sought by the empowered authorities is too general in its scope, legal remedies of judicial review should be claimed.
The Apex Court in Re: Ramlila Maidan incident (2012) 5 SCC 1, held that the restraint has to be reasonable and must be minimal…the most onerous duty that is cast upon the empowered officer by the legislature is that the perception of threat to public peace and tranquility should be real and not quandary, imaginary or a mere likely possibility…that there has to be an objective application of mind to ensure that the constitutional rights are not defeated by subjective and arbitrary exercise of power.
In Anuradha Bhasin v. Union of India, Writ Petition (Civil) No. 1031 of 2019, the Apex Court has held that the power u/s 144 CR.P.C, cannot be used as a tool to prevent the legitimate expression of opinion or grievance or exercise of any democratic rights. The Constitution protects the expression of divergent views, legitimate expressions and disapproval, and this cannot be the basis for invocation of Section 144, unless there is sufficient material to show that there is likely to be an incitement to violence or threat to public safety or danger. It ought to be noted that provisions of Section 144, will only be applicable in a situation of emergency and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed.
The nature of an order under this section is prohibitory, and there is a differentiation between measures that have a ‘prohibitory’ and ‘restrictive’ effect. The words ‘prohibition’ and ‘restriction’ cannot be used interchangeably. The threshold for ‘prohibiting’ a particular activity is higher and must indeed satisfy the requirement that ‘any lesser alternative would be inadequate.’ The prohibitory order issued repetitively in verbatim, is in direct contravention of Apex Court directions in Anuradha Bhasin, wherein, the Court stated that the restriction through prohibitory order should be done after a careful inquiry by the Executive Magistrate before exercising the extraordinary power. However, in this case there seems to be no objective inquiry about the effect and impact of the order first issued in April and reissued subsequently. It is still unclear that what purpose the prohibitory order served at first instance, and thereafter it was needed to be reissued repetitively in verbatim. Whether any action was taken against anyone under this order or whether the order succeeded to achieve its aim and objective.
Ambiguity and Absurdity in the Language
The terms and phrases used in the order are vague, absurd and unreasonable for e.g. “inciting mistrust towards government functionaries”, ‘distortion of facts’, ‘information causing panic and confusion among the general public’, ‘derogatory and discriminatory towards a particular community’, ‘derogatory content’. It is trite law that the words and phrases used in executive orders, statutes, rules must be clear, plain, unambiguous and reasonably susceptible to only one meaning and words must be expounded in their natural and ordinary sense. In Nathi Devi v. Radha Devi Gupta, AIR 2005 SC 648, the Apex Court held that in case of ambiguity in the words and phrases it will lead to an absurdity and inconsistencies or unreasonableness which may render the act in question as unconstitutional. The various terms used in prohibitory order is undefined, open ended and unambiguous, therefore, making it amenable to judicial review.
The Court in Shreya Singhal v. Union of India, AIR 2015 SC 1523, stated that the definition of offences under the section 66A of the IT Act were both “open-ended and undefined” and that “the information disseminated over the Internet need not be information which ‘incites’ anybody at all. The Court further stated, when the rights are restricted, firstly, there has to be surety of a looming danger that has a ‘direct and proximate nexus’ with the expression being curtailed, secondly, this expression needs to qualify as ‘incitement’ and not mere advocacy of one’s opinion, and thirdly, the measure imposed should be the last resort and unavoidable. The present prohibitory order falls flat on all accounts and liable to be withdrawn in larger public interest.
Freedom of Expression vis-avis Fair Criticism
While issuing a prohibitory order the Executive Magistrate is duty bound to balance the rights and restrictions based on the principles of proportionality and thereafter apply the least intrusive measure. The phrase, “inciting mistrust towards government functionaries” abridges the constitutional right of freedom of expression provided under Article 19 and curtails citizens’ rights to criticise the government, which is in violation of fundamental rights to free speech under the Constitution. The restriction upon such fundamental rights should be in consonance with the mandate under Article 19 (2) and (6) of the Constitution.
In Kedar Nath Singh v. State of Bihar, 1962 SCR Supl. (2) 769, the Court held that a citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.The Supreme Court in Shreya Singhal, while discussing the scope of “reasonable restrictions” held that section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such rights and the reasonable restrictions that may be imposed on such right. Therefore, power under section 144 cannot be used as a legal tool to suppress the constitutional rights of the citizens.
Availability of Appropriate Penal Provisions
During lockdown the circulation of fake news and misinformation on social media is a cause of concern for the authorities; therefore, to curb spread of such misinformation the States Government issued advisory to the public and also directed social media platforms to take necessary action against fake news. The Cyber cell of different States removed various fake news and objectionable content from social media platforms and also made arrests under IPC, IT Act and other statutes. It is apt to mention that during lockdown neither any State nor the district administration of any State invoked S. 144 CR.P.C., except Mumbai, to curb social misinformation or to restrict criticism of government functionaries by making group admin personally liable for the action of the members.
As per the principle of Statutory Interpretation, ‘Generalia Specialibus NonDerogant’ the provisions of a special law will prevail over the provisions of general law. In case of a conflict between the procedural law, i.e. CrPC and a special law, i.e. IT Act the special law will prevail. In Union of India v. Ram Saran, Criminal Appeal No. 410 of 1997, the Apex Court held that, where a special procedure is prescribed by a special law, then that special law must prevail over the provisions of CR.P.C.
There are adequate provisions under the IPC and other statutes to take action against fake news and social misinformation, however, invoking S. 144 CR.P.C., to issue a prohibitory order, tantamount to misuse of power, and its an unwarranted and a disproportionate action on behalf of the authority; when the appropriate legal action can be taken against such misinformation and fake news on social media under various sections of IPC i.e. 153A, 295A, 504 and 505, Section 54 of Disaster and Management Act, 2005, Section 3 of the Epidemic Disease Act, 1867, Section 69A of the IT Act, and section 5(2) of the Indian Telegraph Act, 1885.
Curious Saga of Group Admin Liability
The most problematic issue under the prohibitory order is that it fixes criminal liability for an individual, i.e. group admin by way of an executive order, in the absence of a charging section, making the order arbitrary and unjustified under the law. The order imposes a fictitious liability that is very stringent, and with no procedural clarity or boundaries drawn for its exercise. The Delhi High Court in Ajay Bhalla vs. Suresh Chawdhar, CS (OS) No.188/2016, has held that defamatory statements made by any member of the group cannot make the Administrator liable. It is not that without the approval of the administrator, the members cannot make posts on the group.
Presently, there are no statutory provisions for making the group admin liable for the post made by a member of the group. A group admin has only limited power to add or remove members from the group. Unless the admin has abetted, or assisted in posting an objectionable message, the admin cannot be held liable even vicariously.
The fact that mens rea is must for the constitution of a criminal offence is the basic principle of criminal jurisprudence. Both criminal acts (actus reus) and intent (mens rea) must be together to constitute a crime. The principle of vicarious liability has no application in criminal law. In Hira Lal Hari Lal Bhagwati v. CBI, (2003) 5 SCC 25, the apex Court stated that under the penal law, there is no concept of vicarious liability unless the said statute covers the same within its ambit.
Even under the IT Act the group administrator is not an intermediary. He is thus, not subject to the obligations drawn out for an intermediary, such as to remove objectionable content on coming to know about it. Therefore, imposing criminal liability on group admin through an executive order violates the constitutional rights of a group admin.
In the current COVID-19, a situation when the state functionaries are overburdened with a health crisis, it is merely impossible to execute this vague and ambiguous order. The repetitive issuance of the prohibitory order without any application of mind is unjust, arbitrary and abuse of power. The Executive Magistrate is duty bound to provide sufficient reason and substantiate the situation of immediate prevention, before renewing it. The prohibitory order has been re-issued in verbatim without any explanation and justification. Invoking extraordinary power under section 144 CrPC to curb misinformation is totally unwarranted in view of existing penal provisions. The criminal action against the group admin in the absence of any statutory backing is without the authority of law. The restrictions imposed by the prohibitory order on the individual right to freedom of expression under Section 144, is arbitrary and unconstitutional.
By Vaibhav Choudhary, managing partner, YHprum Legal, Akansha Rajpurohit, Managing Partner, YHprum Legal, Shruti Shrestha Partner, YHprum Legal .