In facile words, the gag order is an order, typically passed by the Court or the
government, restricting an information or comment from being made public. In the
present context, the Gag order was passed by the Mumbai police on 23rd May 2020,
which came into effect from 25th May 2020 to 8th June 2020. This order shall
restrict the public their right to comment or criticise the functioning of the
government over online social media platforms like Whatsapp, Twitter, Facebook,
The order was passed under S.144 of Criminal Procedure Code (CrPC),
1973 to ensure that there is no danger to human health or safety or disturbance
of the public tranquility. Any person contravening this order shall be
punishable under S.188 of the Indian Penal Code, 1860. This order raises several
questions on the constitutional rights bestowed to the citizens.
The Gag order
is challenged before the Bombay High Court as it violates the fundamental right
of freedom of speech and expression provided by virtue of Article 19 of the
Constitution of India and, therefore, liable to be struck down. The Court
adjourned the petition till June 23rd. Moving forward, the blog discusses the
Gag order vis- a- vis freedom of speech and expression and case laws pertaining
to the present context.
Gag order vis-�-vis Freedom of Speech and Expression
Every citizen of the country has the right to freedom of speech and expression
under reasonable restrictions; however, fundamental rights are not every time
suspended under the guise of reasonable restrictions. S.144 of CrPC cannot be
used to suppress the constitutional rights of the individual. The Court has
recognized that the citizens� right to peaceful protest was a fundamental right
under Article 19(1) of the Constitution, subject to reasonable restriction;
however, the restriction should be imposed after the proper application of mind
and taking care of the rights of the individual. 
The gag order imposed by the Mumbai police is to prohibit any person from
inciting mistrust towards the functioning of the government, spreading the
misinformation or causing panic and confusion among the general public and to
prevent the spread of the COVID-19 virus, however, as a matter of fact this
prohibitory order has a clause which is restricting the fundamental rights of
the citizens to criticise the functioning of the state government. The freedom
of speech and expression forms the core of any democracy, according to J.S Mill,
- For stability of society one must not suppress the voice of the citizens, how
so ever contrary it might be. 
Punishing individuals for criticizing the state contradicts the right of freedom
of speech and expression. Supreme Court held that:
everyone has a fundamental
right to form his opinion on any issues of general concern. Open criticism of
government policies and operations is not a ground for restricting expression.
Intolerance is as much dangerous to democracy as to the person himself.
In a democracy, every institution shall perform its function within the
prescribed limits, thus, the action taken by the Commissioner of Police or the
Magistrate to forbid citizens from having a contrary opinion against the state,
makes it unlawful as well as offensive. The misuse of the power by the
authorities is severe injustice to the common people, who elect politician to
protect their rights, but they end up in the trap, which makes them powerless as
all the rights are conferred to them.
The Mumbai police are using Gag order as a tool to take away the right of the
people to criticize the government; without the right to criticise the
government, we land up in the State which is a tyrant in nature and where the
rights of the people are not respected and honoured. This order of the
Maharashtra government is vague and they are trying to remove the people�s
rights under the veils of public health and tranquillity. Even, if we see it
from the laymen perspective it is violating their rights to speak against the
arbitrary order like this, so looking it from the lawmen perspective will anyhow
make this order unconstitutional.
Similarly after imposition of this prohibitory order, as after the recent
decision of honourable Supreme Court,  right to use the internet forms part
of freedom of speech and expression under Article 19(1)(a) as it allows an
individual to express their views on social media; however, this gag order
restricts individual to use the internet messaging and social media to express
their opinion or criticising the state policy in a bona fide way before the
social media users. This infringement of right leads to whacking injustice to
the people who are considered as the backbone of the democracy and restricting
the voice of such people shall put the very fundamental rights of the citizens
in the uncertainty.
Supreme Court on Is Criticizing the state a crime?
In numerous cases Supreme Court confronted with issues where the state was
violating the fundamental rights of the citizen by passing ex-parte orders, the
apex court opined that, only at the time of exceptional circumstances the
fundamental rights could be taken away, that too can also be done by following
the guidelines laid down by the apex court. The rights cannot be taken apart to
fulfill mala fide motive of the government. There are several incidents that
show, how the state is being a tyrant from democratic by making �criticizing the
state� a crime.
In the recent judgment of, Anuradha Bhasin v. Union of India,  Supreme
Court has explained the Principle of Proportionality, which says that every
authorized person is duty-bound to balance the rights and the restrictions based
upon the Proportionality and after that apply the least intrusive measure.
The guidelines given by the apex court are not taken care of while passing the
arbitrary order like this and authorities did not ponder to balance the rights
and the restrictions, they solely restrict the rights of the citizens. The order
passed by the police commissioner is both disproportionate and intrusive as per
the principle of proportionality laid down in the above judgment.
In the case of Brij Bhusan v. the State of Delhi,  the Supreme Court held
that, Prior limitation upon the speech is possibly unconstitutional, as it
confines the individuals or ideas, from entering the public sphere. It gives the
state exclusive control over what material can or cannot be allowed to enter the
marketplace of ideas.
In a case of Javed Habib v. the State of Delhi,  it was held that holding
views against the state government cannot be considered as inappropriate. The
apex court additionally held that, the democratic system, which essentially
includes the advocacy of the substitution of one government by another, gives
the individuals the right to criticize the government.
Criticizing the State is not a crime; instead, it is the heart of democracy.
This right is vested by our constitutional forefathers to functionalize the
democracy in the way it works. Questioning the politicians is the fundamental
right of the citizens; however, presently, most of the politicians are trying to
curb these rights by making it a crime.
In the recent anti-CAA protest, the citizens are criticising the bill, as they
have the fundamental right to criticise but their rights are being curtailed,
and they are charged for the sedition by the ruling government in the name of
public disorder. Such stringent restrictions on the speech endanger the very
idea of democracy.
The ex-parte gag order passed by the Mumbai police is unconstitutional as it
violates the basic right of freedom of speech and expression, so it cannot be
enforced at any stage whatsoever. Seeing the present issue of the pandemic in
India, if we do not criticize the government for its false measures then it
shall give them arbitrary power to take all actions without thinking twice about
the fundamental rights of its citizens.
At last, we can hope that the Supreme Court would re-examine this misuse of
power by the state government to fulfill its mala fide intention by curbing the
rights of the individuals and come up with principles or guidelines against the
state government which ensure that fundamental right of speech and expression
should not be taken away, until and unless these thoughts and expression are
made with an intention to disrupt the peace and tranquility of the society or
danger the public health at large.
- Ramlila Maidan Incident v. Home Secretary, (2012) 5 SCC 1.
- J.S Mill, The liberty of thought and discussion, Chapter 2, available at
- S. Rangarajan v. P. Jagjivan Ram, 1989 SCC (2) 574.
- 2020 SCC OnLine SC 25.
- 2020 SCC OnLine SC 25.
- 1950 SuppSCR 245.
- (2003) 8 SCC 461.