tl;dr
As India continues to reel under the scourge of the second wave of the fatal coronavirus outbreak, the country is confronted with yet another health hazard in the form of mucormycosis or “black fungus”. In this context, the Department of Health and Family Welfare, Government of NCT of Delhi (the Department) on May 27, 2021 issued a notification titled Delhi Epidemic Diseases (Mucormycosis) Regulations, 2021 which prohibited individuals or organisations from spreading “any information on mucormycosis without prior permission of the Department”. We have sent a legal notice to the Government of NCT of Delhi, seeking a revocation of the notification on grounds that such proscriptions disproportionately regulate online speech and stifle freedom of speech and expression.
Background
Mucormycosis is a rare fungal disorder which has emerged in alarming numbers in India. While the mucor fungi have always been ubiquitous, it was not until recently that mucormycosis became a recurrent phenomenon. This disease is known to cause irreparable tissue damage to the human face, jaw, eyes and brain. While many construe it to be a collateral damage of the steroids administered to Covid-19 patients, there is evidence about independent cases of this rare fungal infections as well. Ineptitude and delay in diagnosis, sparse supply of antifungal medicines and absence of adequate medical infrastructure has rendered this disease rapidly fatal.
In that milieu generating awareness about the disease with medical advisories pertaining to prevention and precautions are necessary to curb the number of fatalities. The crucial role that prompt information dissemination plays in the face of a health emergency was illustrated during the second wave of the Covid-19 outbreak in India. The Supreme Court of India held that,
“Sharing information widely is an important tool to combat Covid.”
Between March 1, 2021 and April 21, 2021, 3,56,000 ordinary citizens had used Twitter to connect life saving resources to those requiring SOS support during the Covid crisis. Awareness and sensitisation on mucormycosis should not be perceived any differently.
In this context, we came across Delhi Epidemic Diseases (Mucormycosis) Regulations 2021 (Mucormycosis Regulations/ Regulations) dated May 27, 2021 issued by the Department of Health and Family Welfare, Government of NCT of Delhi. These regulations are overbroad, detrimental to the need of the hour and are ignorant of the learnings from the second wave of COVID-19. Free speech and expression is not only a constitutional right guaranteed to the citizens of India but also has enabled mobilisation of life saving resources for those grappling with the second wave of the Coronavirus. This notification, which effectively is a gag order, has a chilling effect on free speech and prevents spread of vital information on Mucormycosis. Paragraphs 5 and 6 of the Regulations states:
“5. No person/institution or organisation will spread any information or material for management of mucormycosis without prior permission from the Department of Health and Family Welfare, Government of NCT of Delhi.
6. No person/institution or organisation will use any print-electronic or any other form of media for mucormycosis without prior permission from the Department of Health and Family Welfare, Government of NCT of Delhi.”
These provisions are likely to have adverse impact on the efficient management of the mucormycosis epidemic in Delhi.
- Firstly, since permission from the concerned authority is mandatory before spreading information or materials, including educational materials, about mucormycosis, health workers will not be able to provide timely guidance with its management, scientists studying the disease will not be able to publish results, and the media will not be able to report on the spread of the disease.
- Secondly, if any of these stakeholders speak without taking the permission of the Department, they may face prosecution under Section 188 of the Indian Penal Code, 1860, punishment for which extends from one month to six months of imprisonment. This is disproportionate to the cause of action and can potentially implicate providers of essential providers in the pretext of regulating misinformation.
Legality of the Delhi Epidemic Diseases (Mucormycosis) Regulations 2021
We sent a legal notice to the Department of Health and Family Welfare, Government of NCT of Delhi requesting them rescind the aforementioned paragraphs of the Regulations. While the underlying concerns of misinformation are relevant, imposing a blanket embargo on online speech with an overbearing threat of prosecution becomes unbecoming of a democracy and is disproportionate to any lawful regulation of misinformation. In the legal notice we have made the following points:
- Prior restraint is presumptively violative of Article 19(1)(a) of the Constitution: The Mucormycosis Regulations impose prior restraint; that is, they prohibit speech on mucormycosis even before it takes place unless the Department permits. In Brij Bhushan and Anr vs State of Delhi 1950 Supp SCR 245, the Hon’ble Supreme Court held that prior restraint on speech is presumptively unconstitutional. Against the constitutional scheme, such forms of prior restraint give the State exclusive control over what material can be allowed to enter the marketplace of ideas.
- Mucormycosis Regulations are overbroad and have a chilling effect on speech: The Mucormycosis Regulations prohibit any comments on mucormycosis without the permission of the department. Indeed, ‘disinformation’ about the mucormycosis which misleads the public, can be and is prohibited (Section 505, Indian Penal Code, 1860; Section 54 Disaster Management Act, 2005). However, the breadth of the Mucormycosis Regulations prevents the publication of even bona fide comments otherwise permissible in law and which do not present any danger to human life, health or safety. These provisions jeopardise the act of even informing the public about the disease without prior permission of the Department. Moreover, since the Department is the arbiter of permissible speech, the Regulations also have a chilling effect on freedom of speech. Individuals will choose to stay silent than seek permission from the department for speech that may be permissible in law but which the department may not look upon favourably. The Hon’ble Supreme Court in Shreya Singhal vs Union of India (2015) 5 SCC 1, had struck down a provision of the Information Technology Act, 2000 because it was overbroad and had a chilling effect on freedom of speech.
- The Mucormycosis Regulations are contrary to the observations of the Hon’ble Supreme Court on Covid-19 measures: The Hon’ble Supreme Court on April 30, 2021 in Suo Motu Writ Petition (Civil) No. 3 of 2021 has observed that clamping down on the sharing of information about COVID-19 is against the interest of the nation and without such information, COVID-19 may turn into a tragedy worse than what it already is (Paragraph 63). These observations apply to the Mucormycosis Regulations as well.
- The Mucormycosis Regulations violate Article 21 of the Constitution by putting the lives of the residents of NCT in danger: As a result of the chilling effect, residents of the NCT of Delhi may entirely cease sharing materials about mucormycosis, including lawful, informative, and educational materials. Even if a resident seeks permission from the Department to lawfully post comments or remarks regarding mucormycosis, it will lead to serious delays to the dissemination of crucial life-saving information. This endangers the lives of patients and those at risk, and thus violates Article 21 of the Constitution.
To ensure that the residents of Delhi are not subjected to any unreasonable clampdowns on the freedom of speech and no lives are lost due to the unavailability of crucial information on mucormycosis resources, we urged in our legal notice that the aforementioned paragraphs be rescinded and the orders of rescission be made available to the public.
In May 2021, through our application under section 144(5) CrPC to the Collector of Indore, we were successful in the rescission of a similar gag order which prohibited any comments “in an unrestrained manner” on the social media regarding the transmission of the coronavirus. We are hopeful that our application will be taken into consideration by the Government of NCT of Delhi and appropriate actions shall be initiated.
Important documents
- Legal Notice addressed to the office of Director General of Health Services, Government of NCT of Delhi dated June 3, 2021 (link)
- Notification issued by Department of Health and Family Welfare, Government of NCT of Delhi dated May 27, 2021 (link)
- Application under Section 144(5), CrPC addressed to Collector, Indore dated May 10, 2021 (link)
- Order issued by the Collector, District of Indore under Section 144(1) CrPC dated April 20, 2021 (link)
- Supreme Court order in Suo Moto Writ Petition (Civil) No. 3 of 2021 dated April 30, 2021 (link)
- ‘Black Fungus is creating a whole other Health Emergency in Covid stricken India’, The Guardian, June 2, 2021.(link)
- ‘Delhi Govt Regulations Suggest Gag on Info About Managing Black Fungus’, Science The Wire, May 28, 2021.(link)