Context

On March 31, the Supreme Court of India (SC), entertaining a writ petition under Article 32, passed an order which raises more questions than it seeks to answer.

What were the issues involved in the writ petition?

• The writ petition was purportedly filed in the public interest, “for redressal of grievances of migrant workers in different parts of the country”.
• Directions which are in favour of the Union government: The Court has proceeded to issue several directions which are clearly in favour of the respondent, the Union of India.
• The following three directions were uncalled for:

What were the directions issued by the Supreme Court?

• One, that under section 54 of the Disaster Management Act, 2005, persons can be punished with imprisonment, which may extend to one year, or with a fine for making or circulating a false alarm or warning.
• Disobedience of the order including an advisory by a public servant would result in punishment under section 188 of the IPC.
• Two, all concerned, that is the state government, public authorities and citizens will faithfully comply with directives, advisory and orders issued by the Union of India in letter and spirit in the interest of public safety.
• Three, the media should only refer to and publish the official version of the Government of India, publishing a daily bulletin.
• The SC observations about migrant labourers: After giving substantial reliefs to the Union of India, the SC proceeded to make mere observations about migrant labourers by directing that they should be dealt with “in a humane manner”.
• And that “trained counsellors, community leaders and volunteers must be engaged along with the police to supervise the welfare activities of migrants”.
• The SC has virtually absolved the government for its handling of the situation.

What was the basis for issuing orders and issues with it

• The basis of the directions is a statement made by the Solicitor General of India and some status reports to the effect that “the exodus of migrant labourers was triggered due to panic created by some fake/misleading news and social media”.
• What is an issue with basis? The SC has proceeded on assumptions and surmises which were untested and unchallenged.
• What the court should have done? In a matter of such seriousness, the least it should have done was to have appointed an amicus curiae (a friend of the court) to assist it rather than simply accept the self-serving status reports and statements made before it.
• The Court overlooked the fact that in India, hundreds of millions of people work during the day and are paid at the end of the day and then go and buy their foodstuffs.
• They have no savings, nor do they have foodgrains stored.
• It is surprising that the Court, the custodian of fundamental rights, should be oblivious to this reality.

Issue of press freedom

• Citizens have the right to freedom of speech and expression. Press freedom is a part of this. Citizens have the right to receive information as well.
• Article 13 (2) of the Constitution says that the state cannot make any law which takes away or abridges the fundamental rights.
• If Parliament cannot do so, the Supreme Court — the upholder of the constitutional rights — surely cannot do so.
• The SC has itself held in M Nagraj (2006): “A right becomes a fundamental right because it has foundational value. The fundamental right is a limitation on the power of the State. A Constitution, and in particular that part of it which protects and which entrenches fundamental rights and freedoms to which all persons in the State are to be entitled, is to be given a generous and purposive construction.”
• The SC should not have made all media subservient to the government by directing that the former “refer to and publish the official version about the developments”.
• Such an order could be justified only during an emergency and that too by the executive, subject to challenge before the courts.

Conclusion

The SC has given a carte blanche to the authorities, and citizens appear to have no avenues of redress. Most of all, by condemning the media and social media, holding them responsible for fake news, the SC has done a great disservice to the institution which provides information to citizens and upholds democracy.

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