Freedom of Expression In COVID-19
‘Freedom of Expression’ is one of the most elementary rights of every human being. This right is one of the prime essentials of any democratic republic. The Freedom of Expression refers to one’s complete liberty in expressing his/her sentiments and views by words, either by speaking or through writing, printing, any images, or through any other mode without any kind of hindrance or objection from the public authorities. Thus, it consists of expressing ideas by way of any communicable medium or any form of visible representation, like signs, gestures and such other things. This right also encompasses publication which refers to the freedom of the press. The freedom of speech and expression also includes the freedom to propagate not only one’s self-views. It also covers the right to propagate or publish other people’s views; otherwise, the concept of the freedom of the press would bear no value.
Article 19 of the Universal Declaration of Human Rights states that – Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference, and to seek, receive and impart information and ideas through any media, and regardless of frontiers.
The freedom of speech and expression is a fundamental right. It helps fortify many other rights and allows them to thrive. The right to speak your mind openly on important affairs of the society, access and propagate information plays a vital role in the healthy evolution and progress of any society. This freedom of speech and expression serves certain special purposes. They are:
- It helps an individual to attain self-accomplishment.
- It aids in the disclosure of truth.
- It strengthens an individual’s decision-making capability.
- It provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change. All citizens of a democratic society must build their own opinions and ideas and convey them openly to one and all.
Article 19 (1) (a) under Part – III of the Indian Constitution provides that – “All citizens shall have the right to freedom of speech and expression.” Thus this right has been asserted as one of the fundamental rights to the Indian citizens.
The Freedom of Speech and Expression is the key element of any democracy. In Romesh Thapar v. State of Madras [AIR 1950 SC 124], Patanjali Shastri, J. has rightly observed that –
“Freedom of Speech and the Press lay at the foundation of all democratic organisations, for without free political discussions no public education, so essential for the proper functioning of the process of popular Government, is possible.”
However, this fundamental right is not absolute. It is subject to certain limitations as imposed by Article 19 (2) of the Indian Constitution, referred as ‘reasonable restrictions” on certain grounds as insecurity of the state, friendly relations with foreign countries, public order, contempt of court, morality and decency, defamation, incitement to offence and the integrity and sovereignty of India.
THE COVID-19 CRISIS
Since the discovery of the Corona Virus pandemic in December 2019, the pandemic has spread across the globe like a wildfire. It has affected billions of lives and has taken away the lives of millions of people. In these testing times, the governments worldwide have got the golden opportunity to put a restriction over the freedom of speech and expression. Many have put restrictions over the right to access information, right to privacy, and so many other fundamental rights.
Amidst the pandemic situation, when everyone is locked down inside their houses, access to information has become crucial. To satisfy people’s demands, the government in various states regularly held press conferences headed by medical practitioners and senior government officers, and even in these conferences, limited representatives of media were allowed. Governments also generated exclusive hotlines to serve various purposes, to clarify people’s doubts and many websites were created which were updated continuously regarding the rates of infection as per day, the daily fatality rate and so much other detailed information.
The government has put strict censorship over this freedom of speech and expression. However, these citizens and media channels have dug their own grave themselves. Numerous kinds of fake news have been overall social media platforms, sometimes even in forged government notifications.
In April 2020, when the Indian Government has declared the nation-wide lockdown, lots of migrant labourers assembled outside the Bandra Station in Mumbai, defying all social-distancing norms and several other guidelines and lockdown orders, just based on fake news, creating a rampage, as a result of which numerous FIRs were lodged against hundreds of labourers. Even in Noida, people got panic-stricken when a news channel had wrongly published news of some persons being quarantined in the locality. Topping that, there had been rumours about cow urine and alcoholic drinks’ healing powers, how pets can spread a virus, which led to the owners abandoning their birds and dogs, and so many more!
There have been numerous cases of the government taking severe steps in order to curb down such cases. However, the government has taken a step ahead to stop such rumours, thus getting the golden opportunity to hamper the fundamental rights to freedom of speech and citizens’ expression. For example, in April, Dr Indranil Khan, a medical practitioner in the field of oncology, tweeted regarding the lack of proper PPE kits for the doctors and other persons involved in the medical field, who are basically the frontline warriors, because of which an FIR was lodged against Dr Khan. The Calcutta High Court granted him interim relief where Indra Prasanna Mukherji, J., has put forward –
“Freedom of speech and expression, which is granted under Article 19 of India’s Constitution, has to be scrupulously upheld by the State. Suppose an opinion expression brings the government into disrepute. In that case, it cannot defend this allegation by intimidating the person expressing the opinion by subjecting him to prolonged interrogation, threatening arrest seizing his mobile phone and SIM card, etc. It can do so if a citizen tries to utilise this freedom by circulating alleged facts maliciously to cause damage another person or the public at large or the nation. This could be done by the unnecessary spread of fear and panic among the public for the above reason.”
However, ironically enough, Dr Indranil Khan was barred from making any other Facebook posts in this aspect, until the case gets completely disposed of by the court. By doing this, the court very blatantly suppressed his freedom of speech and expression.
In another situation, an FIR was lodged against the senior editor of The Wire – Siddharth Varadarajan for criticising the whimsicalities of the UP Yogi Adityanath led government. Charges were filed against The Wire editor under Section 188, Section 505(2) of the Indian Penal Code which deals with “statements creating or promoting enmity, hatred or ill-will between classes”. Section 66 – D of the Information Technology Act, 2000, has been invoked, which deals with the punishment for cheating by personating through computer resources.
As mentioned above, all of these cases indicate an alarming situation where many people from many fields have been pinned down, suppressed, and forcefully stopped from opening their mouth anyhow. The judiciary has always shown openly how they embrace and protect people’s right to freedom of speech and expression, but in reality, they act and order just the opposite. Another most prominent example is when the Supreme Court of India ordered the media houses, the news channels to the only report on the government’s official information and numbers regarding the pandemic situation.
LAWS RELATING TO ALL THESE
The primary laws relating to the freedom of speech and expression amidst the pandemic situation includes the National Disaster Management Authority Act, 2005; the Epidemic Disease Act, 1897, and the Section 144 of the Code of Criminal Procedure. These are the major tools used by the government in this lockdown situation.
The National Disaster Management Authority Act, 2005, is very subjective. Though this act does not speak of the rights of speech and citizens’ expression during the lockdown, Section – 6(1) of the Act gives powers to the National Authority to lay down policies and guidelines for disaster management. Thus, as per the statute’s wordings, it provides enormous powers to the National Authority, wherein the National Authority can, whenever required, may issue restrictions over the freedom of speech and expression of the citizens. Again, Section 18 (1) of the act provides similar powers to the State authorities. Section 35 (1) of the Act provides that the Central Government may take any measures, whenever required, for disaster management. This is the most worrying part of this National Disaster Management Authority Act. It empowers the government, to take any measures as and when required. In this regard, the government may clamp down on the freedom of speech and expression in the name of emergencies, disaster management, and the pandemic situation. Section 54 of this act again provides punishment or raising false alarms or warnings during disasters regarding its severity or magnitude, leading to panic amongst the significant masses.
The Epidemic Disease Act, 1897, is another act in this regard. It grants the government extensive powers to take extraordinary measures and prescribe regulatory measures to control the outbreak and control from spreading of dangerous epidemic diseases. Though no specific mention has been given to the restraint on freedom of speech and expression, the government may take regulatory measures, utilise its power under this act, and suppress citizens’ fundamental rights.
It is coming to the Code of Criminal Procedure, where Section 144 of the Cr.P.C. allows a District Magistrate, a Sub- Divisional Magistrate or any other Executive Magistrate whom the state government empowers to order or direct any person to abstain from any certain act which is likely to cause hindrance to any person lawfully employed, or cause any danger to human life, health or safety or any disturbance to the public order in general. This again is a grey area o the law, where it is left to the executive’s discretion, to decide which situations would pose a risk to the public order at large, and which would not. Thus, again, Section 144 will be misused to put a restraint on freedom of speech and expression.
WHAT MAY SAVE US FROM THIS SITUATION?
In this situation, where there are so many weapons in the hands of the government, the only thing that may come to our rescue includes the Doctrine of Proportionality and as well as the ‘reasonable restrictions’ which have been provided under Article 19 (2) of the Constitution of India.
In the landmark case of KS Puttaswamy, the Court had held that – “Proportionality is an essential facet of the guarantee against arbitrary State action because it ensures that the nature and quality of the encroachment on the right are not disproportionate to the purpose of the law.”
In Anuradha Bhasin v. Union of India , the Supreme Court has put forward that there needs to be a striking balance between proportionality and the reasonable restrictions regarding the freedom of speech and expression. The Apex Court had ruled that undefined restrictions on internet services are illegal and that the orders for internet shutdown must have satisfied the tests relating to proportionality and necessity. Internet services cannot be shut down unless it is causing any harm to national security. The Court stressed that the right to having internet services very much falls within the scope of freedom of speech and expression, which is thus a fundamental right protected by the Indian Constitution. The Court also held that restrictions under Section144 of the Cr.PC cannot be used for suppressing legitimate expressions of opinions on democratic issues.
This Covid-19 situation is an entirely new situation where we are slowly adapting to the ‘new normal’. In this pandemic situation, many laws have been enforced, which were not used beforehand. It has provided fertile grounds to the government to curb citizens’ right to freedom of speech and expression. However, here what may only come to our rescue is the Indian Constitution which ardently protects our fundamental rights by Article 32. Also, the ‘reasonable restrictions’ provided under Article 19 (2) may come to our rescue. Thus all of these needs to be embraced, along with the doctrine of proportionality, which will help our fundamental right to freedom of speech and expression.
 the author is a student of Department of Law, The University of Burdwan
 Srinivas v. State of Madras, AIR 1931 Mad. 70.
 Dr. J. N. Pandey, Constitutional Law of India, pg. 195 (54th ed. 2017)