Whether the order issued by the Government of Rashtra was in violation of the provisions of

the Constitution of Rashtra

The order is in contravention with Article 19 of the Constitution of Rashtra.

Art. 19 protecting the freedom of speech and expression recognises the natural right to
Freedom of Speech and Expression of an individual is treated absolutely essential to his
being. The Supreme Court of India has held a speech to be undeniable human right from
which almost all other freedoms spring. The right under Art. 19 is also essential to the
sustenance of democracy and is necessary as a tool for proper governance in a constituted
democracy. Further, freedom of speech and expression is universally recognized. Free speech
is a norm of international law under art. 19 of UDHR. Art. 19(2) of ICCPR protects freedom
of expression in almost the same terms as art. 19 of UDHR. The order sought by the Govt of
Rashtra [“Govt”] to put restrictions on the dissemination of information related to NOVID-
19 by the state governments, authorities and persons is invalid because the restrictions violate
the fundamental right to freedom of speech and expression recognised under the Constitution
of Rashtra [“Const”] [A], and violate the provisions of the ICCPR which has been ratified by
Rashtra. [B]

(i)  The order fails the test of reasonableness under Article 19 of the Constitution of Rashtra.
The Fundamental Right to freedom of speech and expression can be restricted on the grounds
of public order, morality, national security, defamation and incitement to an offence. The
importance of the right to freedom of expression as regards individuals and societies has been
recognised in multiple judgements across jurisdictions. The Flavian Supreme Court has
widened the scope of this right by including the freedom of press. Presently, this right has
been violated by the ResOr because it restricts the freedom of the press and journalists [i]; it
denies the citizens' right to access the information regarding Kazalia. [ii]

i. The freedom of press and journalists has been restricted.

* The press plays a very significant role in the democratic machinery and the courts have a
duty to uphold the freedom of the press and invalidate all laws and administrative actions that
abridge that freedom. A free, uncensored and unhindered press or other media is essential in
any society to ensure freedom of opinion and expression and the enjoyment of other rights.
The free communication of information and ideas about public and political issues between
citizens, candidates and elected representatives is essential. This implies a free press and
media to be able to comment on public issues without censorship or restraint and to inform
public opinion. Therefore, the freedom of the press includes freedom of publication, freedom
of circulation and freedom against pre-censorship.

* A free and independent press is considered to be key mechanism or a crucial factor in a

functioning, just and healthy democracy. Even though they act as “neutral conduit of
information between the people and their elected leaders or a neutral form of debate”,
however their function goes much beyond. Their primary function is to provide
comprehensive and objective information on aspects of a country’s social and political life. It
also serves as a power antidote to any abuse of power by officials and as a means for keeping
the elected officials responsible to the people whom they were elected to serve. As
highlighted in the case of New York Times vs Sullivan, “acceptance by the government of a
dissident press is a measure of the maturity of the nation”, however this maturity is not being
showcased through the order passed by the government of Rashtra. Moreover, going by the
judgment pronounced in the case of Printers (Mysore) Limited v Assistant Commercial Tax
Officer, “the democratic credentials of a state are judged by the extent of freedom the press
enjoys in that state”, but the State of Rashtra seems to be steering away from its democratic
credentials, and is moving towards a rather despotic one.

* The freedom of press is inherent to the right to freedom of speech and expression as
enshrined in Article 19 of the Constitution of Rashtra. This is because the freedom of the
press is not so much for the benefit of the press as for the benefit of the general community
because the community has a right to be supplied with information and the government owes
a duty to educate the people within the limits of its resources. However, this benefit of the
public is being curtailed in the case at hand.

* According to Romesh Thappar v. State of Madras, imposition of pre-censorship on a

newspaper. or prohibiting it from publishing its own views or those of its correspondents on a
burning topic of the day, constitute an encroachment on the freedom of speech and
expression. The freedom of speech and expression includes freedom to propagate ideas which
is ensured by freedom of circulation of a publication, as a publication is of little value without
circulation. Therefore, imposition of a ban upon entry and circulation of a journal within a
State is restriction of Article 19(1)(a). In the issue under consideration, the global pandemic
NOVID-19 caused by the deadly virus can be equated to the term “burning topic of the day”
and the restrictions imposed through the order issued by the government of Rashtra curtail the
Right to freedom of speech and expression of the press, hence encroaching upon their right to
advance public interest by publishing facts and opinions without which a democratic
electorate cannot make responsible judgments.

According to Bennett Coleman, the freedom of press as enshrined in Article 19 of the

Constitution of Rashtra, includes the right of the people to speak and express. This freedom is
not only limited to the volume of circulation, but also brings into its purview the volume of
news and views. Going by this pronounced judgment, it would not be legitimate on behalf of
the state to subject the Press to laws which take away or abridge the freedom of expression or
which would curtail circulation and thereby narrow the scope of dissemination of information
or fetter its freedom to choose its means of exercising the right or would undermine its
independence by driving it to seek Government aid. So is the situation in the case at hand, as
by driving the different media houses or other sources seeking to publish any sort of statistics
or information on the topic of NOVID-19 to first be approved by the Government in regards
of their information’s legitimacy is an indirect and coercive way of steering them towards
seeking Government aid and also cuts down the volume of the news which is being produced
as the sole authority to publish it is kept by the Central Government all for itself

* In the case of Sakal Papers v. UOI, the law in question was to directly control the right of
circulation of newspapers "which would necessarily undermine their power to influence
public opinion it cannot but be regarded as a dangerous weapon which is capable of being
used against democracy itself." The Court in this matter emphasized, "The freedom of speech
and expression of opinion is of paramount importance under a democratic constitution which
envisages changes in the composition of legislatures and Governments and must be
preserved." Similarly, it cannot be said that the statistics and information being published by
the various media houses and other sources would lead to the upheaval of public order as the
same would play an extremely crucial role in the proper managementand prevention of the
pandemic as in this way both - the Government and the public themselves – would be able to
actively and responsibly participate in this process.

* In the case of Mineral Development Limited v. State of Bihar, the Court has noted that in
today's free world, press freedom is at the core of social and political discourse, emphasizing
the significance of press freedom in democratic society. With a view to checking
malpractices interfering with the free flow of information, democratic constitutions all over
the world make provisions guaranteeing the freedom of speech and expression and laying
down the limits of interference with it. "It is, therefore, the primary duty of all the national
Courts to uphold the said freedom and invalidate all laws or administrative actions which
interfere with it contrary to the constitutional mandate."

*The underlying purpose of the restriction imposed by the government of Rashtra was to take
effective measures for the containment and the prevention of the spread of the officially
declared pandemic known as NOVID-19. Around March-April 2021, several media
organizations started reporting allegedly divergent and inconsistent statistics and information
on important subjects relating to NOVID-19 management like the infection rate, deaths,
recovery rate, availability of hospital beds, medical oxygen, and essential drugs, etc. The
order issued by the government aimed to issue containment measures in respect thereof
should only be based on officially verified data and sources through official channels as the
alleged divergent and inconsistent data was leading to widespread panic amongst people
including the medical fraternity and was derailing efficient management of the NOVID-19
disaster. However, the restriction which ought to be imposed and the restriction which was
imposed in actuality were not consistent as they were in fact arbitrary and of an excessive
nature. This is because instead of formulating guidelines for the various sources publishing
statistics and information to streamline and make factually reliant, the government of Rashtra,
through itsorder, placed a restrictive measure instead of a regulatory one. Moreover, this
order also curtailed the freedom of press and the right to acquire information and disseminate
the same. The Order violates the freedom of press because they are absolute in nature on
account of non-publication of any valuable information or news pertaining to NOVID- 19
without the permission of Central government and the indefinite continuance of these
restrictions. This order neither concurs with the felt need of the society and the complex
issues facing the people nor does it act in the furtherance of public interest. Such is the case
because by giving the central government the sole authority in such matters, it undermines
the state government’s capability to better understand its own nuances and intricacies in
matters such as topography, demography etc. as the State Government is more equipped to
tackle the local issues whereas the central government has a bird’s eye perspective.
Therefore, the state should be held liable for infringement of freedom of speech and
expression recognised under the art. 19 of the Constitution of Rashtra.

ii. Public's right to access information regarding NOVID- 19 has been denied

Right of the public to seek and receive information on the matters of public importance is
an important part of the right to freedom of speech and expression. It ensures public
access to multitudes of ideas and philosophies. The public's right to know and the
journalists' right and duty to publish information in the public interest constitutes an
essential aspect of freedom of speech and expression. This right embraces the public's
need to seek the truth, its right to participate in the debates of general interest, social
change and decision making. Public's right to access information includes the right of the
general public to receive information from the media on matters of public affairs and
public importance. Matters of public importance include the well-being of the citizens or
the welfare of a community. As a means to protect the right of media users, States parties
are required to take particular care to encourage independent and diverse media so that
the public could receive a wide range of information and ideas. The citizens can make a
request for information and the public authority may provide such information if the
public interests in disclosure outweigh the harm to the protected interests.

* According to Shreya Singhal v. UOI, if the right to freedom of speech and expression
includes the right to disseminate information to as wide a section of the population as is
possible, the access which enables the right to be so exercised is also an integral part of
the said right. The wider range of circulation of information or its greater impact cannot
restrict the content of the right nor can it justify its denial.

* The right to freedom of speech and expression is described as a "basic human right", "a
natural right" and the like. It embraces within its scope the freedom of propagation and
interchange of ideas through any available media whether print or electronic or audio-
visual, such as, advertisement, movie, article or speech, etc., acquiring and dissemination
of information without interference to as large a population in the country, as well as
abroad, as is possible to reach which would help formation of one's opinion and view
point and debates on matters of public concern.
 * In Maneka Gandhi v. UOI, Bhagwati J said, “every citizen must be entitled to
participate in the democratic process and in order to enable him to intelligently exercise
his right of making a choice, free and general discussion of public matters is absolutely
essential.” This ensures that the most important function of the right to freedom of speech
and expression as well as the sanctity of democracy is maintained by ensuring that
decision-making at all levels is preceded by discussion and consideration of a
representative range of views.

* According to Chief Information commissioner vs State of Manipur, the freedom to

receive and communicate information is an important aspect of the freedom of speech and
expression. Without adequate information, a person cannot form an informed opinion.
The government of Rashtra, through its order, is stripping off the general public its right
to make an informed opinion in situations concerning the management and prevention of
the disease caused by the deadly virus.

* In Ajay Gautam v. Union of India & others, a petition was filed for prohibition on
exhibition of film “PK”. The Court held that “right to communicate and receive ideas,
facts, knowledge, information, beliefs, theories, creative and emotive impulses by speech
or by written word, drama, theatre, dance, music, film, through a newspaper, magazine or
book is an essential component of freedom of speech and expression. And this right
cannot be suppressed on ground of formation of harmful act by its audience as a result of
such beliefs, unless commission of harmful acts is a real close and imminent consequence
of speech in question.” In the situation at hand, the Court dismissed the petition as the
petitioner did not satisfy the Court of any sort of “clear and imminent danger‟. Therefore,
in the instant case, mischievous creation of law-and-order situation cannot be a ground for
interfering with the right to freedom of speech and expression as the publishing of
statistics and information comes under the rightful and constitutional exercise of the right
as pronounced in the above judgment.

* According to the case of State of Uttar Pradesh v. Raj Narain and Secretary, Ministry of
Information and Broadcasting- Government of India v Cricket Association of Bengal, the
hon’ble Supreme Court was of the opinion that Article 19(1)(a) not only guarantees a
citizen’s freedom of speech and expression, but also incorporates there right to receive
information in matters of public concern which in the case under consideration is a
widespread pandemic caused by a deadly virus known as NOVID-19. “In a government of
responsibility like ours, where all the agents of the public must be responsible for their
conduct there can be but few secrets. The people of this country have a right to know every
public act, everything that is done in a public way, by their public functionaries.” The “public
act” here being the prevention and the management of the pandemic by the “public
functionaries”, being the central Government. “To cover with veil of secrecy, the common
routine business, is not in the interest of the public. Such secrecy can seldom be legitimately
desired. It is generally desired for the purpose of parties and politics or personal self-interest
or bureaucratic routine. The responsibility of officials to explain and to justify their acts is the
chief safeguard against oppression and corruption.”

* Presently, the restrictions imposed by the Govt's Order are hindering the role of the media
and journalists to bring to public knowledge the actions of the public officials, thereby
denying the citizens' right to access information regarding the ‘actual’ situation of NOVID-
19.

The restrictions imposed upon the freedom of the press are not in accordance with the
provisions of ICCPR.

*The right to freedom of opinion and expression is of paramount importance in any

democratic society. Art. 19(2) of ICCPR requires states parties to guarantee the right to
freedom of expression, including the right to seek, receive and impart information and ideas
of all kinds regardless of frontiers. The obligation to respect freedom of opinion and
expression is binding on every state party and therefore all branches of the state and other
public or govt authorities, at whatever level are in a position to engage the responsibility of
the state party. All forms of expression and the means of their dissemination are protected
under art. 19. The term expression includes political discourse, commentary on public affairs,
discussion of human rights and journalism. This right includes the expression and receipt of
communications of every form of opinion subject to the provisions in art. 19(3) and art. 20 of
ICCPR.
* Art. 19(3) of the ICCPR establishes a three-part test for the validity of restrictions on
freedom of expression. Only those restrictions are considered to be legitimate which meet this
strict three-part test. It requires that a restriction must be in accordance with the law [i]; the
restriction must serve a legitimate aim [ii], and the restriction must be necessary for a
democratic society [iii]. The restrictions imposed herein through the ResOr are not valid
under the art. 19(3) of the ICCPR and art. 29 of the UDHR as explained below.

i. The restrictions are not governed by a defined law.

* First, a restriction must be in accordance with the law. This includes primary legislation, as
well as regulations and other legally binding documents adopted pursuant to primary
legislation. Under this part of the test, the power to authorise restrictions on freedom of
expression is essentially vested in the legislative branch of govt. A norm cannot be regarded
as ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate
conduct to a reasonable degree. The rules must be foreseeable to a degree that is reasonable
in the given circumstances.

* The Order passed by the govt does not fulfil the criteria and standards prescribed under art.
19(3). It imposes an absolute limitation upon the freedom of speech and excludes the
possibility of positive criticism. Further, there has been no definite legislation that formally
governs the restrictions imposed on the media houses, journalists and independent authors
leading to violation of this limb of the Test.

ii. The restrictions are not pursuant to a legitimate aim.

* Under the second part of the Test, a restriction on freedom of expression can be valid only
if it pursues a legitimate aim. Legitimate grounds for restrictions have interpreted to be the
respect for the rights or reputations of others and the maintenance and protection of public
order. Criticism of actions of the public officials is a sign of a functioning democracy and it
neither threaten the reputation of officials nor leads to public disorder. The speech or writing
must have a direct and proximate link with the danger it creates if published in the prevailing
circumstances. For restrictions to be considered being pursuant to a legitimate aim, a nexus
should be established between the reasonable restrictions and the legitimate grounds. The
dissemination of information related to NOVID – 19 was an attempt to inform public the
public about the exact statistics of NOVID- 19 and various preventive measures to control its
spread. The sole intention of the state governments, media chouses and journalists was to
create awareness among the general public and not to instigate any kind of panic. Therefore,
the restrictions imposed on the media does not serve any legitimate aim and hence it is
unreasonable to restrict media from publishing news on the present matter which holds great
importance from the perspective of public awareness and govt accountability towards the
public.

iii. The restrictions are not necessary for a democratic society.

* Lastly, for a restriction to be necessary for a democratic society, it must fulfil a pressing
social need and should be proportionate to the legitimate aim pursued. In a representative
democracy, public participation in political discourse is essential. The press, being a public
watchdog, is obliged to impart information on the matters of public interest eliciting general
debate in a democratic society. The public cannot be held liable if they carry on a peaceful
demonstration which goes wrong, so long as no threats were made. The citizens can criticize
their govt but that does not provide for the govt to suppress such criticism on the possible fear
that exercise of free speech could lead to an undesirable situation when there exists a threat to
public order.

* The Order hinders the free speech of the media on the matter of the denial of human rights
to the natives of Rashtra. The fear of circulation of fake news and incitement to aggravate
situations related to NOVID- 19 cannot be considered as a justified reason or a pressing
social need for imposing such absolute restrictions. Therefore, the imposition of the Order
violates the democratic setup of Rashtra.