Constitutionality of Mumbai Gag order: Is criticizing

the state a crime?

1.Introduction
The gag order passed by the Mumbai police on 25 May 2020 has been issued under section 144 1
of CrPC2. Section 144 of CrPC enables a Magistrate, Sub-divisional Magistrate or Executive
Magistrate to issue orders to maintain peace and tranquility in public order. Though section 144
grants power to the government officials to curb certain rights of the citizen but according to the
judgment of Hon’ble Supreme Court in Anuradha Bhasin v. Union of India3 section 144 of CrPC
could not be used to prevent democratic rights 4, that happens to be the case in Mumbai police
order that criminalize the criticism of Maharashtra government in handling Covid situation
thereby restricting Article 19(1)(a) of the constitution that grants right to freedom of speech and
expression to citizens.
It is also a known fact that the right to freedom of speech and expression granted under Article
19 of Indian Constitution is not an absolute right and could be restricted under extraordinary
circumstances. Article 19(2) grants power to the state to curb the right to freedom of speech and
expression.
In this paper constitutional validity of the gag order passed on 25 May 2020 vis-a-vis Article 19,
Article 19(2) and section 144 of Crpc would be analyzed along with cases and judgments that
support or not support the order passed by the Mumbai Police curbing the rights of freedom of
speech and expression during this extraordinary times of pandemic.

2.The constitutional validity of the order

The gag order passed by Mumbai Police cannot be termed to be a constitutional order. The
object of the order might be justified but the restrictions imposed by it are excessive and arbitrary
in nature.5 The Mumbai gag order has been issued on the similar pattern of section 144 of Crpc
which was a point of contention in Anuradha Bhasin v. Union of India6. The order issued was

1
Code of Criminal Procedure 1973, s 144.
2
Sukanya Shantha, ‘Mumbai Police Issues Gag Order, Declares Criticising Government a Crime’ (thewire, 27 May
2020) <https://thewire.in/rights/mumbai-police-gag-order-section-144> accessed 29 June 2020.
3
Anuradha Bhasin v Union of India 2011 8 SCC 1.
4
Ibid.
5
Sukanya Singh and Shivek Sahai, 'Fundamental Freedoms And The Extent Of Permitted Restrictions: Analyzing
Maharashtra Gag Order During Covid-19’ (livelaw, 2020)
<https://www-livelaw-in.elibrary.rmlnlu.ac.in/columns/fundamental-freedoms-and-the-extent-of-permitted-
restrictions-analyzing-maharashtra-gag-order-during-covid-19-157717>accessed 01 August 2020.
6
Anuradha Bhasin v Union of India 2011 8 SCC 1.
arbitrary in nature and against the fundamental right of speech and expression of the people of
Jammu & Kashmir. It was contended by the petitioner that the least restrictive option must be put
in place and the state should balance safety of the people with their lawful exercise of their
fundamental rights. In reply to that the Hon’ble Supreme court put emphasis on the judgement of
Ramlila Maidan Incident, In Re-Ramlila Maidan Incident Dt vs Home Secretary And Ors 7
wherein it was ruled that the Magistrate concerned is duty-bound to ensure that the restrictions
should never be allowed to be excessive either in nature or in time.
The concerned authority to issue the gag order in Mumbai failed to ensure that order was not
excessive in nature because it indirectly conveyed through its point 4 that criticism of the
government in handling the Covid-19 situation will bring about penal action. It is a direct
violation of freedom of speech and expression envisaged in article 19 of the constitution due to
the restriction being excessive in nature.
Further in State of Karnataka v. Praveen Bhai Thogadia 8 it was ruled that, this court would
interfere only where the order is patently illegal and without jurisdiction or with ulterior motive
and on extraneous consideration of political victimisation by those in power. The gag order
through its restriction tries to achieve ulterior motive of hiding prevailing inefficiency in
handling the covid situation by penalising the opposition parties and media that try to show the
real picture by way of the criticism.
Freedom of speech and expression is an important facet of democracy. Article 19(2) puts a
reasonable restriction on the freedom of speech and expression to maintain public order. A
restriction can be said to be in the interest of public order only if the connection between the
restriction and the public order is direct and proximate. Indirect and unreal connection between
the public order and restriction would not fall within the purview of the expression “in the
interest of public order”9. Restriction put under Mumbai gag order falls outside the purview of
article 19(2) because it tries to put arbitrary restriction through its 4th point which reads ‘inciting
mistrust towards government functionaries and their actions taken in order to prevent spread of
the COVID-19 virus and thereby causing danger to human health or safety or a disturbance of
the public tranquility’. The test for ascertaining the reasonableness of the restriction of the rights
in Article 19 is of great importance.10

3.The Proportionality Principle

The principle of proportionality comes into the play when the court has to decide whether a
particular administrative or governmental action or even legislative Act is too invasive. 11 In

7
Re-Ramlila Maidan Incident Dt v Home Secretary And Ors 2012 5 SCC 1.
8
State of Karnataka v Praveen Bhai Thogadia 2004 4 SCC 684.
9
Rex v Basudev AIR 1950 SC 67.
10
Srivastava Romit, ‘Test to Determine Reasonable Restrictions Under Article 19 of the Constitution of India’
(2012) SSRN Electronic Journal <https:/https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2135681/> accessed 2
August 2020.
Coimbatore District Central Coop. Bank v. Employees Assn.12 Supreme Court said that If an
action taken by any authority is contrary to law, improper, irrational or otherwise unreasonable,
a court of law can interfere with such action by exercising power of judicial review . One of such
modes of exercising power, known to law is the “doctrine of proportionality”.
In Modern Dental College and Research Centre v. State of M.P.13 Doctrine of proportionality
was divided into four subcomponents that needed to be fulfilled as to prove that the limitation on
constitutional right is valid or not. 14 On analysing the Mumbai Gag order on the basis of these
components we find that.
It is designated for a proper purpose- The designation of the order is for a proper purpose, the
object behind passing the order is justified. It pass this test.
the measures undertaken to effectuate such a limitation are rationally connected to the
fulfilment of that purpose- The gag order when put through this test, fails. The measure
undertaken by the gag order whereby the criticism of government is met by penalty under
Section 188 of IPC is not a proper measure and not connected to the purpose of containing the
spread of the virus. This measure holds the unconstitutional power of lashing out on the media
and opposition parties who criticise the role of the government in handling the covid situation.
The validity of the gag order vis-a-vis article 19(2) which puts the reasonable restriction on
freedom of expression and speech is not justified as it fails the proportionality test.

3.Validity of the order under Section 144 of CrPC

The content of the order issued under section 144 of Crpc cast a broad restriction on the
fundamental rights of the people of India. It was held in Anuradha Bhasin v. Union of India15 that
section 144 of Crpc cannot be invoked to suppress legitimate expression of opinion or grievance
or exercise of any democratic right. The gag order does not make distinction between legitimate
criticism of the government and illegitimate criticism of the government. Person could be held
liable under section 188 of IPC under the gag order even for making a legitimate expression of
opinion or grievance that he/she face due to the mismanagement of the government.
In America Justices Black, Douglas, Murphy, Stone and Rutledge, envisaged that any law
restricting freedom of speech, press religion or assembly must be taken on its face to be invalid
11
A. K. Sikri ‘Proportionality as a Tool for Advancing Rule of Law’ (2019) 3 SCC J-1 <http://scc-
nlul.refread.com/Members/NoteView.aspx?
enc=SlRYVC05MDAwMDUzOTY0JiYmJiY0MCYmJiYmU2VhcmNoJiYmJiZmdWxsc2NyZWVuJiYmJiZ0cnVl
JiYmJiZQcm9wb3J0aW9uYWxpdHkgYXMgYSBUb29sIGZvciBBZHZhbmNpbmcgUnVsZSBvZiBMYXcmJiYm
JkFsbFdvcmRzJiYmJiZnU2VhcmNoJiYmJiZmYWxzZQ==#FN0001> Accessed 02 August 2020.
12
Coimbatore District Central Coop Bank v Employees Assn 2007 4 SCC 669.
13
Modern Dental College and Research Centre v State of MP 2016 7 SCC 353.
14
Barak A, Proportionality: Constitutional Rights and Their Limitations (Cambridge University Press 2012).

15
Anuradha Bhasin v Union of India 2011 8 SCC 1.
till it was proved to be valid. 16 The validity of the order needs to be proven in the court so as to
prove it is not an unconstitutional order that curbs freedom of speech and expression.

5.Conclusion
The stringent gag order putting restriction on the freedom of speech and expression was not
needed in the first place to deal with the pandemic. There are other provisions of law which are
already in place to fulfill legitimate object that the gag order tries to do. Sections 153A, 295A
and 505 of IPC are already in place to fulfill the legitimate goal of the order 17 i.e to prosecute the
person who tries to excite hate speech amongst the general public and induce public mischief.
The gag order is also a disproportionate approach taken up by the government in dealing with the
covid situation as it was noted in S. Rangarajan and Ors. vs. P. Jagjevan Ram and Ors. 18 that,
“The State cannot prevent open discussion and open expression, however, hateful to its policies”.
The order through its 4th point defies the judgement and makes the critique of the government
liable under section 188 of IPC without making a distinction between legitimate criticism and
illegitimate criticism. It can be termed as a clear violation of fundamental rights of freedom of
speech and expression.
The state should be responsible enough and apply the sound mind before issuing such orders so
as not to let the voices of people go unheard and also to let the people be free from all the fear of
getting prosecuted if they speak against the policies of the government. Orders such as this are
the true display of draconian law which prevailed under the british law to suppress the voice of
the people.

16
Madhu Limaye v Sub-Divisional Magistrate 1970 3 SCC 746.
17
Sukanya Singh and Shivek Sahai, 'Fundamental Freedoms And The Extent Of Permitted Restrictions: Analyzing
Maharashtra Gag Order During Covid-19’ (livelaw, 2020)
<https://www-livelaw-in.elibrary.rmlnlu.ac.in/columns/fundamental-freedoms-and-the-extent-of-permitted-
restrictions-analyzing-maharashtra-gag-order-during-covid-19-157717> accessed 11 August 2020.
18
S Rangarajan and Ors v P Jagjevan Ram and Ors 1989 2 SCC 574.