Indore administration curbs speech on social media

Tl;dr

India is in the throes of a disastrous public health emergency. At this time, it is important for the Government to not curb speech. Free speech helps the spread of vital information such as lacunae in government policy, and is instrumental in tackling the pandemic. In fact, the Hon’ble Supreme Court of India on April 30, 2021 noted the importance of not clamping down on speech. In this background, we came across an Order issued by Shri Manish Singh, the Collector for the district of Indore, Madhya Pradesh under Section 144(1) of Code of Criminal Procedure, 1973. The Order prohibits “comments made on Social Media platforms related to breaking of Corona transmission chain in an unrestrained manner” and threatens prosecution for non-compliance.  We have filed an application to the Collector seeking withdrawal of this overbroad Order given that it stifles freedom of speech over the internet.

Background

Over the past two months, the country has been experiencing a rapid surge in COVID-19 cases. However problematic Big Tech may be otherwise, in these times, social media has played an incredibly important role in ensuring that Indians are able to crowdsource scarce resources such as oxygen, medicines, plasma and even patient care. As this report points out, over 3,56,000 ordinary citizens have taken to Twitter to seek help between March 1, 2021 and April 21, 2021. In addition to this, social media has also been essential in holding the Government accountable. In view of the oxygen shortage across the country, it is almost a public duty to ask the Government to take steps  to remedy the situation.

In this background, it has been distressing to see that the Central and State Governments have been ordering social media posts to be taken down - including those posts which seek help on social media platforms. On April 23, 2021, at the behest of the Central Government, Twitter blocked over 50 tweets from politicians (including those of a sitting Member of Parliament and a state minister), filmmakers, actors and others critical of the Government’s handling of the pandemic. In response to the clampdown on social media, the Supreme Court, in its order dated April 30, 2021 in Suo Moto Writ Petition (Civil) No. 3 of 2021, directed the Central Government and State Governments to “ensure that they immediately cease any direct or indirect threats of prosecution and arrest to citizens who air grievances or those that are attempting to help fellow citizens receive medical aid”. (Paragraph 61)

We released a statement condemning social media censorship and also created video explainers (here and here) discussing the legality of prosecuting individuals for their activities on social media.

Legality of Indore’s Section 144(1) CrPC order

In this background, we came across the Order (an English version of the Order follows the original Order) issued by the Collector of the district of Indore, Madhya Pradesh under Section 144(1) of the Code of Criminal Procedure, 1973 (CrPC) dated April 20, 2021.  The Order imposes a range of directions which purportedly ensure that the spread of COVID-19 is restricted. We are particularly concerned with Paragraph 7 of the Order which states -

“7. That the restriction is imposed on the comments made on Social Media platform related to breaking of Corona transmission chain in an unrestrained manner and if any such post will be forwarded/extended forward on social media, then the proceedings will be initiated for violation of The Epidemic Disease Act, 1897, National Disaster Management Act, 2005 and violation of this Order…”

Imposing on restriction of comments in such a broad manner is a patently disproportionate measure to tackle any underlying concerns. Moreover, according to us, the measure is ill-advised, adversely affects the battle against COVID-19, and is not permissible in law for the following reasons:

1. The order is overbroad: The order prohibits commenting, in an unrestrained manner, on the efforts to tackle COVID-19. ‘Unrestrained manner’ or अनर्गल रूप is a vague, overbroad, and arbitrary standard which is unrecognised in law. Certainly some comments made in an ‘unrestrained manner’ may be impermissible in law. However, the lack of specificity also prohibits comments which are bona fide, otherwise permissible in law and which do not present any danger to human life, health or safety. By failing to define the ambit clearly, the Order restricts the freedom of speech.
2. The order has a chilling effect on speech: The Order, because of the threat of prosecution it carries, has a chilling effect on free speech. This implies that individuals in Indore will choose not to express themselves for fear of being prosecuted under this overbroad restriction. As a result of this, information such as those related to availability of life-saving resources may be culled from the public discourse. Thus, the Order violates the right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution.
3. The order is an irregular exercise of the power conferred by Section 144(1), CrPC: Section 144(1) confers upon magistrates the power to impose directions to prevent danger to human life. However, Section 144(1) also requires magistrates to provide material facts based upon which such directions are imposed. The order does not refer to any material which would suggest that the comments on social media have adversely affected the public at large or the battle against COVID-19.
4. The order does not comply with the directions of the Supreme Court’s decision in Anuradha Bhasin vs Union of India, (2020) 3 SCC 637: In Anuradha Bhasin, the Hon’ble Supreme Court of India directed magistrates to apply least intrusive measures while imposing Section 144, so as to balance fundamental rights (Paragraph 152). The Order does not employ the least intrusive measure as it disproportionately curbs speech which is otherwise permissible and threatens prosecution. We have provided a summary of the decision in Anuradha Bhasin here.
5. The order is contrary to observations of the Supreme Court in Suo Motu Writ Petition (Civil) No. 3 of 2021: As we have mentioned above, the Supreme Court on April 30, 2021 directed governments to cease any threats of prosecution against citizens who air their grievances on social media (Paragraph 61). Additionally, the Supreme Court also observed that clamping down on the sharing of information pertaining to COVID-19 by private persons is against the interest of the nation and without such information, it is possible that COVID-19 may turn into a tragedy worse that what it already is (Paragraph 63). Comments on the efforts to tackle COVID-19 ensure that the public at large is made aware of any lacunae in the ongoing battle and thus, the administration in turn is able to address those lacunae. The Order, however, prevents individuals from making such bona fide comments because of fear of prosecution and thus has the propensity to adversely impact the battle against COVID-19.

Application under Section 144(5), CrPC addressed to Collector, Indore

To ensure that individuals residing in the district of Indore do not get unreasonably prosecuted for voicing their opinion on social media, we have filed an application under Section 144(5) addressed to the Collector of Indore. Section 144(5), CrPC allows the Collector to rescind/alter any order made under Section 144(1) on an application of any aggrieved person. In our application, we have made the following demands:

• Rescind the order under Section 144(5) of the CrPC by appropriately modifying Paragraph 7 therein.
• Publish the rescission order on the website of the district administration (http:/indore.nic.in/).
  

We are hopeful our application will be taken into consideration by the Collector. Notably, Section 144(7) requires the Collector to provide us an opportunity of appearing before him regarding this application to show cause against the order. We are willing to appear before him for a virtual hearing, whenever his office requires.

Important Documents

1. Application under Section 144(5), CrPC addressed to Collector, Indore dated  May 10, 2021 (link)
2. Order issued by the Collector, District of Indore under Section 144(1) CrPC dated April 20, 2021 (link)
3. Supreme Court order in Suo Moto Writ Petition (Civil) No. 3 of 2021 dated April 30, 2021 (link)
4. IFF’s statement condemning social media censorship of posts seeking or providing COVID-19 relief April 25, 2021  (link)
5. IFF’s video discussing the legality of orders taking down COVID-19 relief work dated April 26, 2021 (link)
6. IFF’s video discussing the liability of WhatsApp group administrators for content posted by others dated May 5, 2021 (link)