Indore Collector's welcome response - problematic paragraph repealed

Tl;dr

We came across an Order issued by the Collector for the district of Indore, Madhya Pradesh under Section 144(1) of Code of Criminal Procedure, 1973 (CrPC). The Order under paragraph 7 prohibited “comments made on Social Media platforms related to breaking of Corona transmission chain in an unrestrained manner” and threatened prosecution for non-compliance.  We filed an application under Section 144(5) of CrPC to the Collector seeking withdrawal of this overbroad Order given that it stifles freedom of speech over the internet. Today, in a major victory for constitutional values and free speech in the pandemic, the Collector, Indore issued another order under S.144(6) CrPC repealing paragraph 7 of the previous order, and replacing it with clearer and more specific language, limiting the prohibition only to "messages or posts on social media that pose a danger to public peace, law and order, and health of the public, and which violate existing covid protocols”

Background

Over the past two months, the country has been experiencing a rapid surge in COVID-19 cases. It has been a difficult time for everyone and it has been distressing to see that the Central and State Governments have been busy 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.

Our May 10 Representation to Collector, Indore

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 imposed a range of directions to tackle the spread of COVID-19. We were particularly concerned with Paragraph 7 of the Order which stated -

“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…”

We filed an application under Section 144(5) of the CrPC before the Collector, Indore stating the following:

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. By failing to define the ambit clearly, the Order restricts the freedom of speech, and violates the directions of the Supreme Court in Shreya Singhal v. Union of India, (2015) 5 SCC 1.
2. The order has a chilling effect on speech: 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: The Order does not employ the least intrusive measure as it disproportionately curbs speech which is otherwise permissible and threatens prosecution, as required by the directions of the Supreme Court in Anuradha Bhasin.
5. The order is contrary to observations of the Supreme Court in Suo Motu Writ Petition (Civil) No. 3 of 2021: 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.

Accordingly, we called upon the Collector, Indore to

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

A welcome reply from the Collector!

Today, the Collector, Indore issued another order (the translated version follows the order) under Section 144(6) CrPC, in response to our application under Section 144(5) CrPC. In the revised order, the Collector, Indore referred to our representation to him dated May 10, 2021 and stated that on the basis of IFF’s representation, paragraph 7 of the previous S.144 order is hereby repealed, and replaced with the following paragraph (translated from Hindi):

"That such messages or posts, posted on Social Media which present danger towards public peace, law and order and health of the general public at large and which become the reason for violation of prevailing Covid Protocol, will remain restrained”.

This is a major victory for the constitutional rights of all residents of Indore, since the revised order is clearer, more specific and limited in its scope only to issues of law and order and the health of the public, whereas the previous order prohibited any and all comments made in an “unrestrained manner” in relation to Covid-19. The revised order has removed vague and arbitrary phrases such as “provoking the public” and “unrestrained commenting”.

Notably, the revised order also removes the threat of prosecution under the Epidemic Disease Act, 1897 and the National Disaster Management Act, 2005, as was contained in paragraph 7 of the previous order. The direction to group admins to immediately expel group members for “posting wrong messages” has also been removed.

The revised order has not yet been uploaded to the official website of the administration of the Indore district. We will update you once it is.

We are grateful to the Collector, Indore for his swift action to ensure that measures to tackle Covid-19 do not violate or compromise the fundamental rights of the residents of Indore. This will allow us not only to use social media to coordinate vital help and assistance to patients, but also to exercise our constitutional right to express our views and opinions on all matters relating to the ongoing pandemic, including the government’s response to it.  

We also call upon our community to share similar orders that may violate your fundamental right of speech online from your home districts with us.

Important Documents

1. Order dated May 12, 2021 issued by Collector, Indore replacing paragraph 7 of the previous order under S. 144(1) CrPC (link)
2. Application under Section 144(5), CrPC addressed to Collector, Indore dated  May 10, 2021 (link)
3. Order issued by the Collector, District of Indore under Section 144(1) CrPC dated April 20, 2021 (link)
4. Supreme Court order in Suo Moto Writ Petition (Civil) No. 3 of 2021 dated April 30, 2021 (link)
5. IFF’s statement condemning social media censorship of posts seeking or providing COVID-19 relief April 25, 2021  (link)
6. IFF’s video discussing the legality of orders taking down COVID-19 relief work dated April 26, 2021 (link)
7. IFF’s video discussing the liability of WhatsApp group administrators for content posted by others dated May 5, 2021 (link)