There are media reports that District Magistrate of Indore in Madhya Pradesh Shri P Narhari has issued an order under Section 144 of the Criminal Procedure Code (Cr.P.C.) prohibiting sharing of misinformation on the issue of demonetisation of the high denomination currency notes of Rs. 1000 and 500 on social media, such as Facebook, Twitter and WhatsApp. Such action is highly deplorable and completely unwarranted.
The reason given for such prohibitory order is reported to be as under:
“Because of the events in the past few days, it is clear that Facebook posts and comment/likes on them, messages on WhatsApp, which are unfavourable, have hurt the sentiments of general public. Forwarding such messages on Twitter etc, has a proximate and direct nexus with the disruption of public order. Such conduct in future can disturb public order and give rise to a reaction that can incite an individual to commit a crime”.
Section 144 is covered within Chapter 10 of Cr.P.C. which deals with “MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY”. Further, the sub-chapter (C) heading under which this section falls, is “Urgent cases of nuisance or apprehended danger“. The heading of section 144 itself is “Power to issue order in urgent cases of nuisance or apprehended danger“. Thus, it should be clear that Section 144 of Cr.P.C. is meant to be used only in the urgent cases or in emergency situations to maintain public order and tranquillity where some nuisance or apprehended danger to public peace is expected in near future. This section is reproduced below:
“144. Power to issue order in urgent cases of nuisance or apprehended danger.— (1) In cases where, in the opinion of a District Magistrate, a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by Section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, or an affray.
(2) An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex parte.
(3) An order under this section may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area.
(4) No order under this section shall remain in force for more than two months from the making thereof:
Provided that, if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray, it may, by notification, direct that an order made by a Magistrate under this section shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the said notification.
(5) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section, by himself or any Magistrate subordinate to him or by his predecessor-in-office.
(6) The State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to sub-section (4).
(7) Where an application under sub-section (5) or sub-section (6) is received, the Magistrate, or the State Government, as the case may be, shall afford to the applicant an early opportunity of appearing before him or it, either in person or by pleader and showing cause against the order; and if the Magistrate or the State Government, as the case may be, rejects the application wholly or in part, he or it shall record in writing the reasons for so doing.”
It is well known that Section 144 Cr.P.C. is widely misused, even though it be accepted that it is a widely-worded legal provision giving immense powers to the authority concerned. However, in spite of all this, to use Section 144 of Cr.P.C. for prohibiting misinformation on the issue of demonetisation of currency notes is completely ill-conceived, to say the least. Moreover, it is impractical also, as we shall see.
In the case of Babulal Parate v. State of Maharashtra, (1961) 3 SCR 423 : AIR 1961 SC 884 : (1961) 2 Cri LJ 16, a Constitution bench of the Supreme Court held as under:
“It seems to us, however, that wide though the power appears to be, it can be exercised only in an emergency and for the purpose of preventing obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility or a riot, or “an affray”. These factors condition the exercise of the power and it would consequently be wrong to regard that power as being unlimited or untrammelled.”
Likewise, in the case of Mohd. Gulam Abbas v. Mohd. Ibrahim, (1978) 1 SCC 226, a three-judge bench of the Supreme Court held that the kind of orders mentioned in Section 144 are obviously intended only to prevent dangers to life, health, safety or peace and tranquility of members of the public, and also that if public peace and tranquillity or other objects mentioned there are not in danger the Magistrate concerned cannot act under Section 144.
In the above case of Babulal Parate, the Constitution bench of the Supreme Court further held that the satisfaction of the Magistrate as to the necessity of promulgating an order under Section 144 of the Code of Criminal Procedure is not made entirely subjective by the section. It was held that it is true that there is no express mention anywhere in S. 144, Code of Criminal Procedure, that the order of the Magistrate should be preceded by an enquiry. But the section should be construed as a whole. The latter part of sub-section (1) of S. 144 specifically mentions that the order of the magistrate should set out the material facts of the case. It would not be possible for the magistrate to set out the facts unless he makes an enquiry or unless he is satisfied about the facts from personal knowledge or on a report made to him which he prima facie accepts as correct.
It should thus be clear that the power under Section 144 of Cr.P.C. should be exercised only in an emergency situation where there is imminent danger to human life, health or safety, or a disturbance of the public tranquillity or a riot, etc. In the present situation, though there is inconvenience being caused to citizens and large number of people stand in queues outside banks and ATMs, there is hardly any emergency situation that may lead to danger to public peace or riot, etc. In fact, people have been standing in queues in the most peaceful manner possible, despite facing huge inconvenience.
Moreover, how is the sharing of information on social media likely to cause riots or disturbance of public peace? The demonetisation of high denomination currency notes was announced on 8 November 2016, and in about 16 days thereafter, there has not been any riot or disturbance of public peace anywhere in India. This is despite the fact that a huge number of messages containing correct or incorrect information (including rumours of wild nature) have been circulated on the social media.
It is pertinent to point out that the Constitution gives a fundamental right to freedom of speech and expression to the citizens under Article 19. It is a fundamental right guaranteed by the Constitution itself. It cannot be taken away. Only certain reasonable restrictions can be placed on it by making law in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
Though Section 144 Cr.P.C. has been upheld by the Supreme Court, as containing reasonable restrictions within the meaning of Article 19 of the Constitution, it can be applied only if the power under this section is exercised strictly in accordance with the conditions laid down in the section. Thus, this power under Section 144 should be exercised only in emergency situations as mentioned above. If this power is exercised in ordinary situations, such as the situation that prevails now after the demonetisation since there does not appear to be any imminent danger of a riot, etc., specially only due to the information being shared on social media (which is in fact sought to be curtailed under Section 144), then such exercise can only be said to be in violation of the fundamental right to freedom of speech and expression guaranteed to the citizens.
Freedom of speech and expression extends to citizens sharing information on social media, such as Facebook, WhatsApp and Twitter. This fundamental right cannot be taken away in an arbitrary manner by clamping-down on the information being shared on social media. In fact, even if it be presumed that some “misinformation” is being spread on social media with regard to demonetisation, it should not lead to complete crackdown on the right to share information on social media. On the other hand, if at all, there is an individual case of a person or group of persons, mischievously spreading rumours on social media with an intention to cause riot or riot-like situation, such persons should be acted against under the provisions of ordinary laws, which make such acts offence(s). There is no dearth of laws which penalise such misinformation when intentionally spread to create riot-like situation. However, one cannot completely prohibit sharing of information on social media, in the name of the same being “misinformation”, on such trivial grounds. Sword should not be used where a needle is needed. Of course, as mentioned above, by all means, take action against the mischief-mongers under the ordinary laws wherever any offence is found to have been committed. But, do not take away the fundamental right of citizens to share information on social media. There is no such riot-like emergency situation, as is being made out, on the issue of demonetisation.
That apart, how do you segregate “misinformation” from “information”? Who will decide about this? Further, implementing such prohibitory orders under Section 144 Cr.P.C. is completely impractical, when a wholesale clampdown is put in place on citizens. Facebook has about 140 million users in India. WhatsApp may have an equal number of users. Twitter also has tens of millions of users in India. There must be a billion plus messages being shared every day on social media in India. How do you control them? Moreover, at least WhatsApp nowadays uses encryption to transmit messages between two or more users; you cannot read these messages in an unauthorized manner by intercepting them. So, how will the authorities know about such information being shared?
So, how practical is it to ban all such information that is being shared on social media? Which agency in India (leave alone, Indore district) can scan a billion plus messages every day and then take action against millions of users every day? Have all other crimes being solved or prevented already due to which the regular police would be given such mammoth task?
In fact, the opposition parties and certain other people with vested interests have already been organising protests in various parts of the country by their physical presence. On live TV, many such leaders have been making irresponsible statements and spreading mischievous rumours. Is it possible for the authorities to take action first against such people or leaders, who are openly doing it on live TV (which is watched by millions of people at the same time) or by physically attending protests? If not, then, how can you take action against someone who is privately sharing some information on social media to 2-3 or more friends?
It is also surprising that on the one hand, the Government is repeatedly saying that the situation with regard to demonetisation is normal, and on the other, the Government authorities are resorting to such emergency provisions like using Section 144 Cr.P.C. to shut down activity on social media for sharing information in respect of demonetisation. In fact, it may be recalled that when the Chief Justice of India T.S. Thakur recently said that demonetisation may possibly lead to riots if urgent steps are not taken, people did not like that comment and social media was full of jokes on that comment; even the Government was apparently not amused with such comments from the Chief Justice of India. And, now, one of the Government’s own functionaries is using Section 144 Cr.P.C. to curtail flow of information on social media on the issue of demonetisation, as if there is an imminent danger of a riot or a riot-like situation!
Such action by bureaucracy deserves to be deprecated in strongest possible terms. The fundamental right to freedom of speech and expression should not be curtailed for such silly reasons.