States must stop clamping down on free speech in name of fake news

The COVID vaccine being administered by the government of India raises safety and efficacy concerns, stemming from a rushed approval process. However, the Ministry of Home Affairs (MHA) vide a letter dated January 19 has recommended that all state governments pursue criminal action against individuals and organisations spreading “unfounded” or “misleading” rumours that “create doubt” about the vaccine’s efficacy relying on the ambiguously worded penal provisions of the Disaster Management Act (DMA), 2005 and the Indian Penal Code (IPC), 1860.

Given the government’s lack of proactive transparency on safety issues with respect to the vaccines’ approval, public scrutiny serves an important function. The evolution of a nebulous category of “fake news” has become the bedrock of curtailment of free speech. The constitutional guarantee of the right to free speech can only be restricted in a manner that is reasonable and on grounds listed under Article 19(2). The SC has also reiterated that the proportionality of restrictions on speech must be examined while determining their reasonableness. Where restrictions are vague, overbroad, and punitive, they create a chilling effect on free speech and have been held to be unconstitutional by the Supreme Court.

The terms “unfounded”, “misleading” and “doubt” give the police unhindered elbow room to subject individuals to detention and prosecution for raising any questions about government actions in a pandemic.

This is not the first time that the state has resorted to chilling free speech during the pandemic. When the lockdown was first imposed, several state governments (under the Union government’s directions) used state regulations under the Epidemic Diseases Act, 1897 and DMA to criminalise both “fake news” and “unnecessary information”. The CPA Project’s study of policing during the pandemic found that several FIRs had been registered across Madhya Pradesh for “spreading rumours” about COVID-19. The most blatant abuse of such powers was an FIR registered against an individual who proclaimed support for Tablighi Jamaat on WhatsApp.

A report by the Rights and Risks Analysis Group (RRAG) has documented 55 instances of targeting of journalists during the lockdown. State governments have used the garb of epidemic disease control to prosecute persons for reporting on mismanagement of the pandemic, corruption and the lack of state support for migrant workers and others affected by the pandemic. The only purpose of these “fake news” laws has been to advance narratives of effective governance during the pandemic.

The consequences of an illegitimate system of chilling free speech through criminal law also speak of two main problems: Unchecked discretion of the police and the executive’s brazen expansion of speech restricting laws. Further, the executive’s brazen expansion of speech restricting laws coupled with the inconsistent protection extended by our constitutional courts makes this abuse of discretion possible, and even encourages it. The targeting of journalists and dissenters as a part of lockdown enforcement strategy was enabled by state regulations for epidemic control. Laws to tackle rumours and fake news thus go beyond the scope and manner of permissible restrictions.

Public trust in the government during crises is contingent upon disclosure and transparency, not criminal prosecution. It is globally acknowledged that effective government communication about prevention and cure is key during a public health crisis. Therefore, the preliminary response strategy of governments and international bodies to the pandemic was disseminating information about the importance of mask wearing and social distancing.

No democratic government can be considered effective if it fails to be transparent and accountable. Effective government function necessarily requires adequately engaging with and scientifically responding to both valid criticism and unscientific misconceptions to build robust public discourse. When criminal law is relied on to place gags on valid questions and there is a failure to communicate all necessary information to the public, the government violates the principle of informed consent — a crucial tenet of healthcare. “Minimum government, maximum governance” has unfortunately translated into minimum government transparency and maximum public penalisation.

The writers are associated with the Bhopal-based Criminal Justice and Police Accountability Project

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