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Mumbai Gag Order: Can Criticizing A State Be A Crime?

“We are faced with the fact that tomorrow is today. We are confronted with the fierce urgency of now”. -by Martin Luther King Jr

What is a Gag Order?


It is an order made by the judge or any state government prohibiting attorneys, reporters, and the parties in any particular case from disclosing any fact delicate or confidential to the matter by press or review by the public or making any comments related to the case.

In general, gag order means restricting the interference or participation of attorneys, reporters, and parties in any particular matter from disclosing any fact or information which may harm the delicacy or confidentiality of the matter and may damage the right of parties having a fair trial before the court.



At What Circumstances a Gag Order can be issued?


The order can be issued under Section 144 of the Criminal Procedure Code, 1973 (CrPC). Under this section, any Magistrate (District, Sub-divisional or executive) is empowered by the State Government to issue such an order and it may order in writing, under the following circumstances:

  1. An act of taking possession of any certain property or

  2. act tends to obstruction, annoyance or

  3. act tends to injure any person or which may cause danger to human life or

  4. act tends to disturbance to public tranquillity or riot or affray or

  5. cases where the notice is not served or delivered at the due time against whom the order is made and passed ex parte.

Why did Mumbai issue the Gag Order?


According to the effect of COVID-19 in Mumbai, it rapidly increasing the number of cases and death tolls were, as a result, the state is facing public health crisis which itself made necessary for the state to make such prohibitory orders under Section 144 of Criminal Procedure Code(Crpc) after the nationwide curfew to cure public health including:

  • No individual shall be allowed except people discharging essential duties on the streets during the “Janta Curfew”.

  • All establishments accept establishments of emergency services that will not open during the Curfew.

  • All religious places, schools, colleges will be closed and no events or ceremonies shall be conducted there during the curfew.

  • Restriction on the movement of citizens.

  • All eateries, restaurants, pubs, malls, theatres, and gyms shall remain closed.

If any violative action is done against the order, then the person shall be punished under Section 188 of Indian Penal Code(IPC) and shall be imprisoned for the term of 1 month with fine which may extend to 6 months with a fine.

Further, in continuation of such orders the State Government issued the “gag order” under Section 144 of Crpc on May 23 applied from May 25 till June 8 by Mumbai Police Commissionerate because of the following:

(i)Due to the rapid increase and deadly effect on the state, much false information has been disclosed to the public through the media, misleading the public on the information related to wrong precautions, vaccines, etc.

(ii)Broadcasting fake news on social media platforms.

(iii)Making objectionable content by the reporters on their news channel against the orders or steps taken by the government.

(iv)Violating the orders of the government on social media platforms by commenting or sharing such information which results in misleading the public against the government.

Due to these activities of the media, the state issued the gag order which prohibits the telecasting of such information which misguides the public as well as the social media usages against the government actions.


Consequences occurred on this Order


Mumbai has the history of issuing the prohibitory orders from 1992-93 during the communal violence. This time the gag order received different views which have been observed by the public, media as well as the politicians on the gag order. The concerns raised on the gag order is given below-

  • It Imposed a question on the Constitutional validity of the order as it is ambiguous and does not include any proper guidelines for the authorities on its implementation.

  • It is the violation of Freedom of Speech and Expression.

  • It is “prima facie” illegal and beyond the purview of section 144 of Crpc.

  • The order is disproportionate and invasive according to the “principle of proportionality”.

Can Section 144 Suppress the Constitutional Rights of the Citizens?

This question can be clearly explained through the Supreme Court‘s view on Section 144 of CrPC. The Court directed the authorities to immediately review the need for continuance of any existing orders passed under Section 144, and said that power under this section is exercisable not only where there exists present danger, but also when there is an apprehension of danger. “However, the danger contemplated should be like an ‘emergency’ and to prevent obstruction and annoyance or injury to any person lawfully employed. The power under Section 144, CrPC cannot be used to suppress the legitimate expression of opinion or grievance or exercise of any democratic rights.”

The magistrate cannot apply a ‘straitjacket formula’ without assessing the gravity of the prevailing situation. The restrictions must be proportionate to the situation concerned.

As to Summarize the points, Section 144 of CrPC provides the State to take preventive measures to deal with unavoidable threats to public peace and does not suppress the constitutional rights of citizens.

ABOUT THE AUTHOR

Charu Sharma is currently pursuing law (BBA.LLB) at Banasthali Vidhyapith.

They can be contacted at sharmacharu650@gmail.com

Edited By: Swathi. Ashok. Nair

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