Anoushka Chauhan

NALSAR University of Law

The COVID-19 pandemic has disrupted lives all over the nation and across borders and continents, and in order to flatten the curve and curb the damage, it has admittedly called for certain compromises on freedoms across the board. Suspension of a large number of activities and commodities has had an impact on everything, ranging from economies to how we view healthcare systems. And while circumstances have necessitated drastic curtailments of freedoms, it seems that nations across the globe have used the pandemic as a guise to clamp freedom of speech and expression by suppressing criticism through proliferating laws against disinformation. From charges against Dr. Indranil Khan for complaining about inadequate protective gear in hospitals to the Supreme Court’s order requiring news outlets that nothing could be published without first ascertaining the true factual position from the Central Government regarding coronavirus updates, the examples only seem to pile up.

This shift in patterns of freedom of speech under the guise of ‘disaster management’ is not unprecedented, with several forefront democracies, such as the US and UK, having adopted similar tools to suppress the right to free speech and opinion[1]. Dr. Indranil Khan faced detention and prolonged questioning[2] for taking to social media to complain about the lack of protective equipment. The Bengal High Court in this order[3] quashed these claims, and upheld the scrupulous appliance of the fundamental right to freedom of speech and expression, even if the expression or opinion brings the government into disrepute. However, this was subject to stringent restrictions, such as barring Dr. Khan from making any further posts on social media to express dissatisfaction—which in this case, was simply a question of fact. This appears to be a recent trend, where under the guise of protecting freedom of speech, courts seem to only work to the consistent detriment of this fundamental right.

The Supreme Court in an order a few months ago directed the media to publish news on the pandemic after complying with the official updates and numbers published by the Central Government[4]. This was in consonance with Section 67[5] the Disaster Management Act of 2005. Section 54 of the Act attracts criminal liability for the act of causing panic by creating false alarms. The laws which are being implemented during this lockdown[6] are the National Disaster Management Authority Act, 2005, and the Epidemic Diseases Act, 1897. While the specific curtailment of certain freedoms (such as that of movement, to ensure social distancing) in the wake of such a pandemic can be said to be well-warranted, the vague wording of the relevant provisions of both these legislations leaves room for ambiguity. The NDMA provides room for the National Authority to lay down policies, plans, and guidelines for disaster management. With such wording that lacks details or parameters, it would be within the scope of the provision for the government to clamp down on freedom of speech.

According to legal norms, restrictions on human rights have to be linked to the legitimate aim that the state seeks to pursue. Such suspensions can be justified,[7] subject to the tests of proportionality[8]. And the question that ultimately pops up, is whether silencing people from voicing complaints of the pandemic and asking news outlets to pander only to the government’s version of things truly proportional or is it just another step in dismantling democracy’s fundamental pillar?

[1] Nirmalya Chaudhuri, Covid 19: Restricting Health Workers’ Free Speech has a Chilling Effect, Health and Human Rights Journal (May 4, 2020).

[2] The Wire Staff, Calcutta HC Slams Detention of Doctor Who Tweeted on Insufficient Protective Gear, The Wire (April 2, 2020).

[3] Dr. Indranil Khan v. State of West Bengal, W.P. 5326(W) of 2020.

[4] Krishnadas Rajagopal, Supreme Court Order to Media in consonance with Disaster Management Act, The Hindu (April 2, 2020).

[5] Section 67, Disaster Management Act, 2005.

[6] The Epidemic Diseases Act of 1897 grants governments more power for prescribing regulations to contain a national epidemic, which with its vague wording, entails greater scope for disproportionate restrictions.

[7] Article 19(3), ICCPR allows for such suspension of human rights, but that can be disputed on grounds of proportionality.

[8] Propounded in cases such as Om Kumar v. Union of India, restrictions of fundamental freedoms must be proportional, the restrictions must be ‘reasonable’. Also reaffirmed in KS Puttuswamy and Anuradha Bhasin v. Union of India.

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