This Essay is submitted by –
- Somya Jain, 3rd year, Ram Manohar Lohia National Law University, Lucknow.
“We are not just fighting an epidemic; we are fighting an infodemic. Fake news spreads faster and more easily than this virus, and is just as dangerous.”
– Dr. T.A. Ghebreyesus, Director-General, World Health Organisation.
While the world is grappling with the Covid-19 pandemic, eye-popping headlines about the virus’ origin and its unproven cure are being circulated through social media networks without any pre-evaluation or checking. Misinformation regarding the outbreak, spreading faster than its legitimate counterpart, serves as a tool for the fake news peddlers to put the society in turmoil whereby they can take advantage of the vulnerable populace. As the virus has transmitted at a startling pace, authentic information from the right authorities is very limited which is why authorities have to face an avalanche of misinformation. As of now, India does not have a specific law to deal with the ‘infodemic’, but there are certain existing legal provisions invokable in case a person caught circulating fake news during this lockdown.
National Disaster Management Act, 2005
The Ministry of Home Affairs on March 24, 2020, invoked Section 6(2)(i) of the Act, which lay down the policies on disaster management, to order a lockdown of the country. The ‘offenses and penalties’ mentioned under Sections 51 to 60 of the Act serves as an effective tool against offenders who obstruct the process of prevention and containment of the virus.
Section 52 lays down the punishment, which may extend up to two years with fine, for a person making a false claim for obtaining any benefits consequent to disaster from the government. Furthermore, Section 54 citing punishment for the false warning, states that “whoever makes or circulates a false alarm or warning as to a disaster or its severity or magnitude, leading to panic, shall on conviction, be punishable with imprisonment which may extend to one year or with fine.” Section 54 has been referred by the National Disaster Management Authority in its lockdown order.
Indian Penal Code, 1860
Section 54 of the NDMA is very specific to disasters, and the confines of fake news are much far away. Indian Penal Code is a more pertinent recourse available to a victim of misinformation. The Ministry of Home Affairs in its circular dated 2nd April 2020 mentions the applicability of Section 188 and Section 505 of the Penal Code. Section 188 prescribes punishment for disobeying any order duly promulgated by a public servant. The punishment includes imprisonment for a term which may extend up to six months, or with fine which may extend to Rs 1,000, or both. Any fake claim in defiance of the government’s order would land up such an offender in prison.
Section 505(1)(b) addresses a wider canvas, any person who makes, publishes or circulates information that is likely to cause alarm to the public or is against public tranquillity, etc is punishable with imprisonment which may extend to 3 years or fine or both. Furthermore, a person peddling rumors around coronavirus can also be booked under Section 269 of the Penal Code which states the punishment for a person who knowingly does a negligent or unlawful act, likely to spread the infection of any disease dangerous to life.
Moreover, misinformation regarding religion amidst the pandemic has peaked since the Tablighi Jamaat Markaz in Delhi’s Nizamuddin emerged as one of the hotspots of the outbreak. Where a particular religion is being targeted, action can be initiated against such person for creating or spreading fake news, if the same is capable of being termed as hate speech. Section 153 of the Penal Code can be invoked in case a person makes a false claim and gives provocation with intent to cause a riot.
Furthermore, Section 153A of the Penal code lays down punishment for persons who indulge in wanton vilification or attacks upon the religion, race, place of birth, residence, language, etc of any particular group or class or upon the founders and prophets of a religion. The offense is a cognizable offense and the punishment for the same may extend to three years, or with fine, or with both. Section 295-A further lays down the punishment for deliberate and malicious acts intended to outrage the religious feelings of any class by insulting its religion or religious beliefs.
Epidemic Diseases Act, 1897
The Epidemic Diseases Act another enactment to deal with a pandemic of this massive extent. Under Section 2 of this Act, state governments and union territories can take special measures and formulate regulations to contain the disease. And Section 3 of the Act states: “Any person disobeying any regulation or order made under this Act shall be deemed to have committed an offense punishable under Section 188 of the Indian Penal Code.” A person circulating misinformation could be arrested under Section 3 of the Act.
The Information Technology Act, 2000
During the present coronavirus crisis, the Social Media platforms have become an epicenter of all the fake news, misinformation, and hate speech messages. Because of this, the admins of the group and every user of social media platforms have to use the platform responsibly to not come under the scope of the IT Act. The admins, as well as the users posting such objectionable content, can be punished under Section 66C of the IT Act which deals with punishment for identity theft and says that whoever, fraudulently or dishonestly makes use of the electronic signature, password or any other unique identification feature of any person, shall be punished with imprisonment. Section 66D of the IT Act deals with punishment for cheating by personation by using computer resource, with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to one lakh rupees.
Recent legal developments
The Supreme Court in its Order dated 31st March 2020 (Alakh Alok Shrivastava v. Union of India) expected media to maintain a strong sense of responsibility and ensure that unverified news capable of causing panic is not disseminated. And further noted that “a daily bulletin by the Government of India through all media avenues including social media and forums to clear the doubts of people would be made active within 24 hours as submitted by the Solicitor General of India.” The Order also mentions the legal consequences ( Section 54 of Disaster Management Act coupled with Section 188 of the Indian Penal Code) one may have to face if caught spreading false information regarding the pandemic.
Freedom of speech and fake news
In this time of uncertainties, there is fecund ground for the concoction to flourish and grow. The people who have capitalized on the pandemic should face the abovementioned legal consequences. However, the information that is fake and leads to panic is punishable, not all information from authentic sources. Having a free discussion on the pandemic or lockdown does not contravene any law.
Moreover, the Government has far-reaching powers under the Epidemic Act and the Disaster Management Act. These powers are not meant to encroach upon freedom of speech as long as they are used to spread authentic information and not to cause panic among the masses. Therefore, any direction by the Government should be covered within the ambit of Article 19(2) of the Constitution. The Supreme Court, in S. Rangarajan v. P. Jagjivan Ram, has 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.
Freedom of speech not only extends to the right of expressing the views freely but also the right to know. The Apex Court in Bennett Coleman & Co Vs Union of India observed that the word “Right to Information‟ though not specifically incorporated in the Article 19(1)(a) of the Constitution of India, the right of Freedom of Speech and Expression is interpreted comprehensively and “Right to Information‟ is brought within the ambit of Article 19(1)(a). During this Covid-19 pandemic, the importance of the right to be informed is indisputable. Free media plays a vital role in the dissemination of authentic information to the general public.
The Central and State Government authorities should have to remain hawk-eyed regarding any online disturbance to protect the people from being a victim of the Infodemic. A single piece of false information that gains traction can bring the significance of genuine information to zero. Therefore, the authorities should strive for the early detection of fake news, debunk it with the help of social media platforms, and trace the sources of such misinformation. The existing laws on fake news such as the Epidemic Act are archaic and not very specific. The absence of such specific laws can lead to the arbitrary and indiscriminate arrest of individuals under the garb of law. The President on April 23rd, 2020 gave his assent to the promulgation of the new ordinance that seeks to amend the Epidemic Disease Act 1897, but the scope of the amendment is limited and does not cover the problem of misinformation in general. Therefore we need a specific anti-fake news law to end this menace, which again should hand the government proportionate power with accountability. Lastly, media outlets should also fulfill their responsibility of making people aware of the facts and should evaluate each and every piece of information before circulating it.
Approved & Published – Sakshi Raje