On May 23, 2020 the Commissioner of Police, Greater Mumbai issued Order no. CP/XI(6)/144/(Prohibitory Order)/2020 under Section 144 of the Code of Criminal Procedure (CrPC). The order prohibits the dissemination of certain information through social media platforms such as Whatsapp, Twitter, Facebook, Instagram, TikTok etc. We have sent a representation to the Mumbai Police as well as the Maharashtra Home Department asking them to review and amend the order. We also recommended them to issue an advisory with a draft SOP (Standard Operating Procedure) that draws from the “Joint Declaration on ‘Fake News’, Disinformation and Propaganda” issued by the United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression dated March 3, 2017 .
What did the Mumbai Police do?
The Mumbai Police on May 23, 2020 issued an Order under Section 144, CrPC for regulation of social media use and to curb the spread of disinformation related to the COVID-19 pandemic. Under the order:
- Under paragraph 4 of the Order, prohibited information includes incorrect and distorted facts as well as derogatory and discriminatory remarks which cause panic and confusion among the general public and incite mistrust towards the government.
- Under paragraph 5, the Order also states that all persons designated as “admins” (administrators) on messaging and social media platforms will be held personally liable for the spread of any disinformation and derogatory and discriminatory remarks as stated above.
- Under paragraph 6 of the Order, the admins have the personal responsibility of reporting such dissemination to the police .
- The order states that any person contravening the order shall be punishable under Section 188 of the Indian Penal Code (IPC) which prescribes as punishment imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. The order will remain in force until June 8, 2020.
This order has been challenged in the High Court of Bombay in a Writ Petition filed by Mangal Prabhat Lodha, who is a sitting MLA from Malabar Hill and the BJP Mumbai President. In the writ petition, the order has been challenged on the basis that the order is vague and places restrictions on the right to free speech which are not reasonable.
The order has been challenged on the basis that it fails the proportionality test as required under K. S. Puttuswamy v Union of India. The petition also states that the order can be used to target innocent people or people who are critical of the government response and thus be used to oppress dissent. Since criticism and dissent is essential in a democracy and also protected under the Constitution, the petition seeks to get the impugned order quashed.
Legal Deficiencies with the Order
A. Void for vagueness : The order restricts freedom of speech by failing to define the phrase “distorting facts”
Since the order prohibits the dissemination of information that distorts facts, it is also incumbent upon the issuing authority to clearly define the ambit of what they consider to be distortion of facts. By failing to define the ambit clearly, the order suffers from the defect of being vague and providing a wide ambit to restrict the freedom of speech.
B. Ultra vires : The order exceeds the ambit of Section 144 of CrPC
The impugned Order makes people who have been designated as “admins” on social media platforms personally responsible for dissemination of disinformation and also creates upon them a duty to report any person who is disseminating disinformation to the police. This exceeds the ambit of Section 144 of the CrPC under which the issuing authority can only pass a preventative order. The legal powers under it cannot be used to create a positive obligation upon a person to do a certain act.
C. Lack of proportionality : Order under S.144 CrPC must be based on the principle of proportionality and must be the least intrusive measure.
Any legitimate opinion or grievance, especially one which is critical of the government, could be qualified as one which is inciting mistrust towards the government under the order which is disproportionate as well as antithetical to the objective of the order itself. This would thus lead to the suppression of legitimate expression of opinion or grievance or exercise of any democratic rights which cannot be authorised under S.144.
Additionally, we already have legal provisions which relate to the mischief that this order aims to cure. These legal provisions are Section 153A, IPC, Section 295A, IPC and Section 505, IPC.Thus, the order is not the least intrusive measure as required under Anuradha Bhasin v Union of India which held that:
“...While exercising the power under Section 144, Cr.P.C. the Magistrate is duty bound to balance the rights and restrictions based on the principles of proportionality and thereafter apply the least intrusive measure. ”
Disinformation is a complex problem which must be addressed by a policy tool kit that promotes the values of free expression and also to exercise any censorship powers based on the legal standards that emerge that emerges from a human rights framework. Thus, IFF recommended that the Mumbai Police:
- Review paragraphs 4, 5 and 6 of the order and amend the parts which are incompatible with the rights guaranteed by the Constitution of India.
- Issue an advisory with a draft SOP (Standard Operating Procedure) that draws from the “Joint Declaration on ‘Fake News’, Disinformation and Propaganda” by the United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression dated March 3, 2017.
Section 144, CrPC is being misused
As noted herein above the use of Section 144, CrPC must be based on the principle of proportionality and must be the least intrusive measure. However, misuse of Section 144, CrPC has become a troubling trend all over the country. It is a provision which provides almost unbridled power to the executive and has also received criticism for being used to suppress dissent. The Supreme Court recently held that the provision cannot be used as a tool to prevent legitimate expression of opinion, grievance or exercise of democratic rights. However, ultra vires orders still continue to be passed under the section.
- Representation to Mumbai Police & Maharashtra Home Department on Social Media Order dated June 03, 2020 (link)