Even in the times of Covid-19, the SC order must not normalise an exception

Dozens of studies have concluded that free media coverage helps slow the spread of a pandemic. The Supreme Court of India does not seem to agree. In a vaguely worded order passed on the 31st of March, the Court directed the media to “refer to and publish the official version about the developments” relating to COVID-19.

The order came in a petition filed by Alok Alakh Srivastava, a lawyer who espouses many causes. Mr. Srivastava has previously filed PILs seeking a court-monitored probe into the crash of Mirage aircraft, death penalty for the Nirbhaya convicts, mandatory death penalty in cases of rape of minors, protection for doctors etc. He has also filed sundry complaints seeking registration of FIRs against the likes of Manish Sisodia, Shehla Rashid and journalist Prashant Kanojia.

In his most recent petition, Mr. Srivastava sought omnibus directions “to immediately redress the heart wrenching and inhuman plight of thousands of migrant workers.” Notably, the Petition made no complaint against the work done by media organizations. No relief was sought against them and none of them were made parties. In fact, the Petition stated that the pleadings were based on facts gathered from “news item published in various newspapers and news sites.”

In response, the Union Government submitted a status report detailing out the steps taken by it to control the outbreak of COVID-19. The Union also submitted that “due to some fake and/or misleading news/social media messages, a panic was created”. This assertion was not backed by any evidence. Based on this, the Union sought a direction that no form of media (traditional or social), “publish or telecast anything without first ascertaining the true factual position from the separate mechanism provided by the Central Government.”

In its order, the Court recorded its satisfaction with the steps taken by the government. It did not pass any orders to obviate the plight of migrant workers, but agreed with the Government’s assertion regarding fake news.  The Court seems to have stopped just short of instituting a censorship mechanism. It has however directed the media to “ensure that unverified news capable of causing panic is not disseminated.” It has further directed the media to “refer to and publish the official version about the developments.” The official version is to be obtained from a daily bulletin that the government has undertaken to disseminate.

The purport of the order is not clear. Does it imply that the media can publish only the government’s version and nothing else? Or has the Court directed the media to publish news only after it has been verified with the government? This lack of clarity blurs the line between reportage that is permitted and that which is prohibited. The result is a chilling effect on speech, as journalists unsure of what the law requires, begin to self-censor, in order to steer clear of legal trouble. This is exactly the sort of outcome that the Supreme Court deemed illegal in its celebrated judgment in Shreya Singhal’s case.

The government’s attempt to muzzle the freedom of the press through a Supreme Court order is dubious for other reasons. The founders of our republic viewed fundamental rights as a serious matter. Our Constitution puts in place a system of checks and balances to ensure that the freedoms guaranteed by it are not arbitrarily curtailed. Article 19(1) (a) guarantees to all citizens the freedom of speech and expression. Article 19(2) allows speech to be restricted only by an existing law or a law made by the State.

The use of the word “law” here is significant. This is because the “law” presupposed by Article 19 (2) is one which traces its authority to legislature – whether in the form of a statute or delegated legislation. An order passed by a Court is not law for the purposes of Article 19 (2). It follows that a Court does not have authority to restrict free speech.  Article 19 (2) envisages a regime where a court order, or an executive action (without statutory backing) cannot impinge on free speech - even if the restriction imposed by it is “reasonable”.

Article 19 (2) thus creates two checks on the infringement of the right to free speech. First, any action curtailing the right should follow debate and discussion inside legislature – after which a law is enacted. Second, after legislature makes the law, its validity can be checked by judicial review. A judicial order curtailing free speech – (such as the one sought by the Government) does away with both these checks.

By directly restricting speech on the say-so of the executive, it ensures that the deliberative process envisaged by the Constitution is rendered meaningless. It also deprives an individual of the right to challenge the restriction. Where is the individual to go if she wants to challenge the 31st March order?

In his 1922 book ‘Political Theology’, Carl Schmitt introduced the concept of the “State of Exception.” Schmitt argued that in such a situation, the law is what the sovereign states it to be. Schmitt’s theory came to be discredited in later years. Most modern Constitutions recognize that the powers of the sovereign cannot be left unchecked in any situation. Scholars such as Giorgio Agamben have argued that the state of exception is employed increasingly as a technique of government, rather than as an exceptional measure. If abused, the state of exception quickly transforms a constitutional democracy into a totalitarian state, making the exception the rule.

Ever since fear of Covid-19 gripped the nation, there have been numerous state actions that would ordinarily fail constitutional scrutiny. One might argue that a pandemic is enough to justify limitations on fundamental rights. Such an argument has dangerous consequences in the long run. History is replete with examples of states reserving wide powers to themselves during an emergency – only to not give up the powers even when the crisis receded. This is precisely why it is crucial to call out misuse of constitutional power even during these times. A failure to do so may normalise the state of exception.

The writer is a Delhi-based lawyer. He tweets @parahoot