“THE real problem is that when human societies lose their freedom, it is not usually because tyrants have taken it away. It’s usually because people willingly surrender their freedom in return for protection against some external threat. And the threat is usually a real threat, but usually exaggerated. That’s what I fear we are seeing now. The pressure on politicians has come from the public. They want action. They don’t pause to ask whether the action will work. They don’t ask themselves whether the cost will be worth paying. They want action anyway. Anyone who has studied history will recognise here the classic symptoms of collective hysteria. Hysteria is infectious. We are working ourselves up into a lather in which we exaggerate the threat and stop asking ourselves whether the cure may be worse than the disease.” said Justice Jonathan Sumption, Queen’s Counsel (Q.C.), the former judge of the United Kingdom Supreme Court, in an interview to BBC Radio 4’s World at One programme on March 30
As India began to enforce a country-wide 21-day lockdown on March 25, the concerns of Justice Jonathan Sumption, expressed in the context of a similar battle in the U.K., appear to resonate.
On March 31, Union Home Secretary Ajay Kumar Bhalla filed a status report in the Supreme Court in a public interest litigation (PIL) petition for redress of grievances of migrant labourers in different parts of the country in the wake of the lockdown. The petitioners wanted the court to direct the authorities to shift the migrant labourers, who, along with their families, were undertaking the journey back to their villages, located several hundred kilometres away, on foot, to government shelter homes/accommodations and provide them with basic amenities.
But the Centre found in this case an opportunity to expand its jurisdiction, to acquire disproportionate powers in order to silence any criticism in the media of its omissions and commissions in the so-called war against COVID-19. The Centre sought to absolve itself of any blame for the migration of some six lakh migrant labourers across the country, following the unplanned declaration of the lockdown. It did so by attributing the migration to panic created by “some fake and/or misleading news/social media messages”. The Centre claimed in its status report that some State governments did make arrangements for their travel by bus, with a view to initially dispersing the crowd at the State borders. “But, eventually, a final decision was taken not to permit further movement of such migrant workers and required them to stay wherever they have reached while providing for shelter, food and medical facilities to them while observing social distance norms,” the Centre admitted.
Through the status report, the Centre sought to disown responsibility for keeping the State governments in the dark about its lockdown measures, and then pulling them up for ignoring the serious potential of the infection penetrating rural India. The Centre told the court that it had issued directives to all State governments to comply with and enforce the lockdown for the specified period and follow social distancing norms, which would mean complete ban on inter-district and inter-State migration of people.
The Centre, therefore, sought the court’s direction to ensure that all governments and Union Territories implemented all the directives issued by it (irrespective of the nomenclature used) in letter and spirit.
At this point, the Centre sought the court’s indulgence in helping it control the dissemination of news concerning COVID-19: the court should issue a direction that no electronic/print media/web portal or social media shall print/publish or telecast anything without first ascertaining the true factual position (emphasis added) from the separate mechanism provided by the Central government.
The reason for seeking this extraordinary power of pre-censorship of media content is that any deliberate or unintended fake or inaccurate reporting has a serious and inevitable potential of causing panic in large sections of society. “Considering the very nature of the infectious disease, which the world is struggling to deal with, any panic reaction by any section of the society based upon such reporting would not only be harmful for such section but would harm the entire nation,” the Centre reasoned. It reminded the court that the act of creating panic was a criminal offence under the Disaster Management Act (DMA), 2005.
The Supreme Court bench consisting of Chief Justice of India S.A. Bobde and Justice L. Nageswara Rao, which heard the petitions on March 31 through video conference, was silent on the Centre’s plea for pre-censorship of media content while reporting the fight against the coronavirus disease. “We do not intend to interfere with the free discussion about the pandemic, but direct the media to publish the official version about the developments,” the bench said. It expected the media to uphold a strong sense of responsibility and ensure that “unverified news capable of causing panic” was not disseminated.
The bench referred to the Centre’s plan to start a daily bulletin through media avenues to clear the doubts of people, and to ensure that trained counsellors and/or community group leaders belonging to all faiths visited the relief camps/shelter homes to address the mental health conditions of the migrant labourers. The bench exhorted the State governments/Union Territories to engage volunteers to work with the police to supervise the welfare activities for the stranded migrants.
While the Supreme Court was firm in not acceding to the Centre’s plea for pre-censorship, it did not resist the Centre’s devious attempt to attribute the mass exodus of migrant labourers to their villages to fake news. Ironically, the bench, accepted the Centre’s claim that the exodus was triggered by fake news shared in social media.
Indeed, the bench’s order even specified the so-called fake news. Acknowledging that the labourers, who became unemployed due to the lockdown, were apprehensive about their survival, the bench added: “Panic was created by some fake news that the lockdown would last for more than three months”. Even the Centre did not claim this in its status report. Indeed, the bench’s excessive concern over the spread of fake news surprised observers. It cited Dr Tedros Adhanom Ghebreyesus, Director General of World Health Organisation (WHO), who recently stated: “We are not just fighting an epidemic; we are fighting an infodemic. Fake news spreads faster and more easily than this virus, and is just as dangerous.”
The bench repeated its “finding” that the migration was triggered by fake news and that the panic-driven migration caused untold suffering to those who believed and acted on such news. “In fact, some have lost their lives in the process. It is, therefore, not possible for us to overlook this menace of fake news either by electronic, print or social media,” it concluded.
The theory that the exodus was triggered by fake news was in itself fake. It appeared as though the bench gave undue credence to fake news even while pontificating about its ill-effects. It is this excessive concern over the spread of fake news rather than the unplanned nature of the lockdown that made observers wonder whether the Supreme Court was barking up the wrong tree, more so because the bench referred to Section 54 of the DMA, which provides for punishment to a person who makes or circulates a false alarm leading to panic.
The bench also referred to Section 188 of the Indian Penal Code, which seeks to punish anyone disobeying an order promulgated by a public servant. “An advisory, which is in the nature of an order made by the public authority, attracts Section 188 of the IPC,” it held. The bench said it expected all concerned— State governments, public authorities and citizens—to comply with the directives, advisories and orders issued by the Union of India in letter and spirit in the interest of public safety.
Can the Centre issue a directive making it mandatory for prior censorship of media content relating to the pandemic and will such a directive be binding on the media? The general tenor of the court’s order appeared to favour the Centre’s proclivity to acquire draconian powers during the crisis, causing concern about the court’s role as the sentinel qui vive.
Vague legislative framework
The court’s hesitation to refuse disproportionate powers to the Centre during this crisis should be seen in the context of the legislative framework currently in use to implement the lockdown. The Centre has evoked the Epidemic Diseases Act, 1897, and the DMA, 2005, to enable the authorities to exercise extraordinary powers.
The Karnataka government, for instance, published the home addresses along with the travel history, of quarantined residents (14,000 residents of Bengaluru alone), under the EDA, thus violating their fundamental right to privacy. This led to apprehension that those quarantined may face eviction by their landlords. It has been pointed out that neither the EDA nor the DMA accords the government the power to disclose personal information of any kind.
Karnataka has developed a mobile app instructing all persons under home quarantine to send their selfies to the government every one hour from their home. It has also launched the Carona Watch app, which can be downloaded from www.karnataka.gov.in. This allows the user to track the spots visited by the patients up to 14 days before testing positive. The relevance of this personal information to the public at large (rather than the medical team monitoring their movement) during the lockdown is doubtful and its disclosure can only be described as grossly disproportionate to the objectives sought to be achieved. Absence of legal safeguards against such disclosure could lead to stigmatisation and discrimination.
The scope of powers to implement the lockdown under the DMA is debatable. The Haryana Director General of Police issued a notification stating that large indoor stadiums in the State could become “temporary jails” to detain people who venture outside their homes in violation of the lockdown. By March 29, the Haryana Police registered nearly 500 first information reports and arrested 688 people for violating the lockdown. A gram panchayat in Telengana reportedly imposed a fine of Rs.500 on a person who came out of his house three times in a day during the lockdown. The Delhi Police prohibited morning walks, although chances of infection are nil if one maintained physical distancing. Such decisions were clearly disproportionate exercise of the power under the DMA. The vagueness surrounding several provisions of the DMA enabled the authorities to ban individual movements—compared to congregations—at several places.
Section 2 (1) of the EDA grants States and Union territories the power to prescribe temporary regulations to prevent the outbreak of any epidemic or its spread, if they think that the ordinary provisions of the law in force are insufficient for the purpose. While many State governments used the EDA to take precautionary steps to contain the pandemic, the Uttar Pradesh Police, according to some reports, used the same to arrest those protesting against the Citizenship Amendment Act.
Section 6(2) (i) of the DMA grants the National Disaster Management Authority (NDMA), with the Prime Minister as its ex-officio chief, the power to take such other measures for the prevention of disaster or the mitigation or preparedness and capacity building for dealing with the threatening disaster situation as it may consider necessary. The availability of such residuary power under the Act, according to some, is an invitation to the authorities to resort to disproportionate measures, even if they do not stand legal scrutiny, if challenged before a court of law later. The NDMA guidelines, issued on March 24, require closure of Central and State and Union territory government offices (with specified exceptions), commercial, industrial and private establishments (with certain exceptions for maintaining essential services), transport services, hospitality services, educational institutions, places of worship, large gatherings, and so on. According to the guidelines, any person violating these containment measures will face action under Sections 51 to 60 of the DMA and legal action under Section 188 of the IPC. The vagueness surrounding many of these measures is likely to enable the authorities to take disproportionate action resulting in extreme hardship to the common man.
Impact on federalism
An instance of how actions under the DMA could prove counter-productive in the absence of proper consultation between the States and the Centre came to the fore when Karnataka unilaterally placed roadblocks on the National Highway at its border with Kerala. The Kerala High Court, acting on a petition, intervened in the matter and directed the Centre on April 1 to keep the arterial roads that connect Mangaluru in Karnataka to Kasaragod in Kerala free of blockades. The road blocks prevented people of Kasaragod from travelling to Mangaluru to seek urgent medical treatment. Restrictions placed by Karnataka on the movement of people resulted in the loss of many lives, the High Court noted.
It pointed out that the guidelines issued by the Centre under the DMA permitted travel for urgent medical treatment. “We may reiterate that we expect the Central government to act expeditiously in this matter, taking note of the human lives that are at stake,” the bench comprising Justices A.K. Jayasankaran Nambiar and Shaji P.Chaly observed.
Karnataka, however, maintained that the Centre’s guidelines allowed the State to tweak them to suit the ground realities. It justified the restrictions in view of the presence of many COVID patients in Kasaragod, and tocontain the spread of the contagion in Karnataka.
The bench reminded Karnataka and the Centre that India was a signatory to the International Convention on Economic, Social and Cultural Rights, Article 12 of which obliges all state parties to the Convention to recognise the right of everyone to the highest attainable standard of physical and mental health, and to take steps for the creation of conditions that would assure to all medical service and medical attention in the event of sickness. “Our courts have since read in these obligations into the guarantee assured to our citizens under Article 21 of the Constitution. We are also of the view that the restrictions imposed on the transportation of essential articles of food would amount to a breach of the rights protected under Articles 301-304 of our Constitution,” the bench held.
When Karnataka questioned the court’s jurisdiction in hearing the matter, the bench drew its attention to Article 1 of the Constitution, which states: “India, that is Bharat, shall be a Union of States”. The State of Karnataka should respect and guarantee the fundamental rights of a citizen of this country, irrespective of the place of his residence or domicile within the country, the bench ruled.
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