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Freedom of expression is protected under article 19(1)(a) of India’s Constitution. No provision in Indian law specifically deals with “fake news.” However, a number of offenses under various laws criminalize certain forms of speech that may constitute “fake news” and have been applied to cases involving the spread of false news regarding COVID-19, including sections of the Penal Code and section 54 of the Disaster Management Act, 2005.
I. Legal Framework Applicable to “Fake News” and COVID-19
Freedom of expression is mentioned in the preamble of India’s Constitution and is protected as one of several fundamental rights under Part III, article 19(1)(a), which states that “[a]ll citizens shall have the right . . . to freedom of speech and expression.” This right is not absolute and is subject to “reasonable restrictions . . . 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.” Article 358 of the Constitution relates to the suspension of rights under article 19 during a declared emergency, and article 359 provides the procedure for suspending enforcement of the fundamental rights conferred by Part III “during emergencies.”
No provision in Indian law specifically deals with “fake news.” However, a number of offenses under various laws criminalize certain forms of speech that may constitute “fake news” and have been applied to cases involving the spread of false news regarding COVID-19. In particular, section 505 of India’s Penal Code prohibits “statements conducing to public mischief” and subjects to a prison or fine “[w]hoever makes, publishes or circulates any statement, rumour or report . . . with intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility.”
Initially, in February 2020, the Union (or central) government was advising “relevant agencies” of the states and union territories to take appropriate action to “[a]void [the] spread of fake news, advisories, rumors and unnecessary information through proper media management.” Governments at the Union and state level have utilized and invoked the Epidemic Diseases Act of 1897 and the Disaster Management Act, 2005 to deal with the COVID-19 epidemic. Section 54 of the Disaster Management Act, 2005, stipulates that “[w]hoever makes or circulates a false alarm or warning as to disaster or its severity or magnitude, leading to panic, shall on conviction, be punishable with imprisonment which may extend to one year or with [a] fine.” The 21-day national lockdown order issued by the Union government makes reference to this section. In late March, the Union Minister of Interior announced that “[r]umours are being spread about COVID-19 in the country leading to misinformation. FIR [First Information Reports or police complaints] will be registered against those involved in spreading of these rumours and strict action will be taken under provisions of the Disaster Management Act.”
State governments have also issued regulations to deal with COVID-19 under the Epidemic Diseases Act of 1897 that include provisions or guidelines on spreading false news. For example, The Maharashtra government issued the Maharashtra COVID-19 Regulations, 2020, which “prohibit organizations or individuals from publicizing information about the coronavirus without ascertaining prior clearance from relevant government health authorities, in order to avoid [the] spread of misinformation.” Section 3 of the 1897 Act stipulates that “[a]ny person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under section 188 (‘disobedience to order duly promulgated by public servant’) of the Indian Penal Code.” If the disobedience “causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, [the perpetrator] shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.” Notably, several other laws and subsidiary rules, including Section 69A of the Information Technology Act and the Indian Telegraph Act, 1885, have been used in the past to block internet content and implement internet shutdowns to deal with fake news.
In late April 2020, news reports indicated that “around 640 cases have been lodged across the country for allegedly spreading rumours and fake news via social media” on the COVID-19 pandemic “since the government enforced nationwide restrictions.” A Rights and Risks Analysis Group (RRAG) report issued in June 2020 stated as follows:
[A]bout 55 journalists faced arrest, registration of FIRs, summons or show causes notices, physical assaults, alleged destruction of properties and threats for reportage on COVID-19 or exercising freedom of opinion and expression during the national lockdown from 25 March to 31 May 2020. The highest number of attacks in the media persons was reported from Uttar Pradesh (11 journalists), followed by Jammu & Kashmir (6 journalists), Himachal Pradesh (5), four each in Tamil Nadu, West Bengal, Odisha, Maharashtra, two each in Punjab, Delhi, Madhya Pradesh & Kerala and one each in Andaman & Nicobar Islands, Arunachal Pradesh, Assam, Bihar, Chhattisgarh, Gujarat, Karnataka, Nagaland and Telangana.
Free speech activists complained that these nationwide arrests were made under the Epidemic Diseases Act, 1897, several sections of the Indian Penal Code, and the Disaster Management Act, 2005, “to curb criticism against authorities in the name of the health care emergency.” Apar Gupta, a lawyer and internet freedom activist was quoted in the news report as saying
[s]ometimes criticism of lack of preparedness or of certain local issues has also resulted in people being booked. Some of these social media posts fall within the permissible limit of freedom of speech under the Constitution. However, state governments are using a high degree of power that goes beyond public health issues to serve the government’s political objective. This is a matter of grave concern.
According to the International Center for Not-for-Profit Law’s COVID-19 Civic Freedom Tracker,
[t]he Government of Assam filed charges against a Bengali daily published from Silchar, for carrying a false news report about the state’s first COVID-19 patient. The case was brought against the reporter who filed the story and the publisher of the newspaper under Section 188 of [the Indian Penal Code] and provisions of Assam COVID-19 Regulation, 2020. Additionally, Assam DIPR has formed a five-member committee for monitoring and checking fake news in all forms of media. The committee includes officials from the information, health, police and disaster management departments. The committee surveilled social media accounts and created WhatsApp numbers for the purpose of tracking information circulating on Whatsapp. As of April 8, 52 cases had been registered for spreading rumours/uploading objectionable comments on social media and a total of 25 people had been arrested, while eight were detained and then released.
Prepared by Tariq Ahmad
Foreign Law Specialist
 Id. art. 19(2).
 Id. arts. 358 & 359.
 Id. § 55.
 Guidelines on the Measures to Be Taken by Ministries/ Departments of Government of India, State/Union Territory Governments and State/ Union Territory Authorities for Containment of Covid-19 Epidemic in the Country, Annexure to Ministry of Home Affairs Order. No. 40-3/2020-D (Mar. 24, 2020), https://perma.cc/GCX6-VCXN.
 Epidemic Diseases Act of 1897, § 3.
 Indian Penal Code § 188.
 Information Technology Act, 2000, No. 21, § 69A, https://perma.cc/4TWL-Q4MY. Section 69A of the Information Technology Act grants the Central Government the power to issue directions to block content on certain grounds, including to prevent incitement for the commission of a cognizable offense. Procedures and safeguards to which the government are required to follow when doing so are set forth in the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (known as the Blocking Rules), https://perma.cc/6THW-MKHW.
 Indian Telegraph Act, 1973, No. 13 of 1885, https://perma.cc/RE5G-GR8S; Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, Gazette of India, pt. II, § 3(i) (Aug. 8, 2017), https://perma.cc/PG47-UDL5.
 ICNL, supra note 14.
Last Updated: 12/30/2020