1.Introduction
In the present legal world, keeping things that are supposed to be kept confidential, confidential is very hard to do so. So the court while conducting confidential or sensitive proceedings imposes a gag order to stop the spread the confidential information, misinformation, and sensitive information in a case which may lead to the prevention of fair legal proceedings. This restriction may apply to witnesses, attorneys, and also the media. It is also called as a protective order or a suppressive order as it is a legal directive issued by the court that restricts individuals from disclosing certain information. It is mostly employed in the courts when there is the concern of there being unfair legal proceedings held due to it when it involves matters of national security, or when it violates a person's privacy rights.
2.The Varied Scope and Negative Impacts of Gag Orders
Its scope can vary depending on the situation. Sometimes it involves the restriction on the disclosure of certain information and sometimes broader views such as there being restriction in the restriction of disclosure of any discussions held as a whole. If it is not followed properly it often can lead to legal consequences such as contempt of court charges.
Gag orders also have negative impacts. Even as they use these orders in attempt to ensure a fair trail by preventing prejudicial pre trial publicity, its use for the same is controversial as the result of this action may lead to the media or press using thirdhand sources for information and lead to the spread of misinformation regarding the issue(1.Chemerinsky). In a similar manner, a "gag law" may limit the freedom of speech, by instituting censorship or restricting access to information( 2.Polimenopolou). It also has the potential of being misused to restrain information which is in the public interest or it may even lead to the suspicion and distrust of the public on the government that it is withholding sensitive and important information from the public.
3.Mumbai Terror Attacks: Government Response and Proposed Gag
In the November of 2008 there were a series of terrorist attacks conducted by terrorist organization called lashkar e Taliba a militant terrorist organization from Pakistan in Mumbai. There were 12 coordinated attacks which lasted four days. A total of 175 people died injuring 300 in the process (3. Freidman). The terrorist organizations were live streaming the event and thus the Indian government proposed a draft law that would gag media outlets broadcasting live pictures during a terrorist event or war, to ensure the safety of any hostages and to protect security operations from hindrance. The term "gag order" itself may not be explicitly mentioned in Indian legal statutes. However, the concept of restraining the media or imposing restrictions on freedom of speech and expression is addressed in various laws and regulations. The specific legal provisions that may be invoked to impose restrictions or issue orders that effectively act as gag orders can vary depending on the circumstances.
4.Challenges to Constitutional Rights: Mumbai Police Gag Order during COVID-19"
In the current setting, the Gag request was passed by the Mumbai police on 23rd May 2020, which happened from 25th May 2020 to 8 June 2020. This request will limit the public their entitlement to remark or censure the working of the public authority online social media platforms such as WhatsApp, Twitter, Facebook, Instagram, and so forth. The request was passed under S.144 of Criminal Procedure Code (CrPC), 1973 to guarantee that there is no risk to human wellbeing or security or disturbances of public tranquillity . Any individual contradicting this request will be punishable under S.188 of the Indian Penal Code, 1860. This order raises several questions on the constitutional rights bestowed on the citizens. The gag order was challenged in the high court as it violates the fundamental right to freedom as given under article 19 and thus being required to be struck down.
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 prohibitor order has a clause which is restricting the fundamental rights of the citizens to criticise the functioning of the state government. The basis of a democracy is to criticize the government and thus it leading to there being measures taken to right their wrongs but due to there being a gag order issued by the Mumbai police, the people were not able to criticize the actions which were being taken by the government while the covid 19 pandemic was going on. It has thus in one way violated on the fundamental tenets which form a democracy. 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. 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 (4.Jain). In the present case on of the views is that the government using a gag order so as to supress the voice of the people and not allow them to criticize the government is totally violating the fundamental right to free speech and expression as the act of not allowing an individual to criticize the government is in no way a reasonable restriction imposed on the fundamental right to free speech and that too at times of uncertainty.
5.Conclusion
All in all, while gag orders effectively safeguard private data and keeping up with fair legal procedures, their application raises worries about possible abuse and encroachment on crucial freedoms. The effect of such requests, as found in cases like the Mumbai police's limitation during the Coronavirus pandemic, highlights the sensitive harmony between safety efforts and residents' majority rule freedoms. Finding some kind of harmony is pivotal to maintaining the standards of a majority rule society, where criticism and expression play a vital part. A thoughtful and judicious approach is essential to ensure that gag orders do not undermine the very foundations of a free and democratic society.
CITATIONS
1. Erwin Chemerinsky, Lawyers have Free Speech Rights, Too: Why Gag Orders on Trial Participants Are
almost Always Unconstitutional, 17 Loy. L.A. Ent. L. Rev. 311 (1997).
Available at: https://digitalcommons.lmu.edu/elr/vol17/iss2/2 (last visited 8 Jan 2024)
2. Polymenopoulou, Eleni (2021) "Expressing Dissent: Gag Laws, Human Rights Activism and the Right to Protest,"Florida Journal of International Law: Vol. 32: Iss. 3, Article 2.
Available at: https://scholarship.law.ufl.edu/fjil/vol32/iss3/2. (last visited Jan 1, 2024)
3. Friedman, Thomas. No Way, No How, Not Here.The New York Times. Archived from the Original On, vol. 29, 2009.Accessed 8 jan 2024
4. Jain, Ankur. Mumbai Gag Order: Is Criticizing the State a Crime? Legal Service India - Law, Lawyers and Legal Resources, www.legalserviceindia.com/legal/article-3218-mumbai-gag-order-is-criticizing-the-state-a-crime-.html#:~:text=The%20order%20was%20passed%20under,the%20Indian%20Penal%20Code%2C%201860. Accessed 8 Jan. 2024.
