The Ministry of Information & Broadcasting ("MIB") reportedly directed the online video-sharing platform, YouTube to remove 45 videos from 10 channels hosted on its website on September 23, 2022 under the provisions of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 ("IT Rules, 2021"). The impugned videos have been viewed over 1.30 crore times cumulatively and were reportedly found to have the potential to disrupt public order in the country1. However, this is not the only case in the recent past wherein the State has ordered certain publishers to take down content on the grounds of public order. On August 16, 2022, the MIB, by way of certain powers granted to it under the IT Rules, 2021, ordered eight news channels that were hosted on YouTube to be blocked, citing the "sovereignty and integrity of India, security of the State, India's friendly relations with foreign States, and public order in the country" as reasons for the order2. The YouTube channels in question had a cumulative subscriber count of 85 lakh people and a viewership of over 114 crores.

While the constitution guarantees certain inalienable rights to its citizens, it is important to read the fine print on these provisions. For instance, Article 19 (1) (a) of the Constitution of India guarantees all citizens the right to free speech and expression, but this right is of course limited by reasonable restrictions that may be imposed, "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," that are encapsulated within Article 19 (2) of the Indian Constitution. Colloquially, the term public order certainly includes a range of different situations and may include acts ranging from playing music a few decibels too loud to instances that incite public disturbances. Thus, in order to better understand the reasonable restrictions clause on the same, it is essential to understand what would constitute an act that violates public order.

Our expedition through the body of case law on public order as a reasonable restriction to the right to freedom of expression begins with the cases, Brij Bhushan vs. State of Delhi (1950 AIR 129) and Romesh Thappar vs. State of Madras (1950 AIR 124). It is important to note that these matters were decided prior to the First Amendment of the Constitution (at which time "public order" was not a reasonable restriction, rather speech that "undermines the security of, or tends to overthrow, the State" could have been restricted by the State) and both were prior restraint cases (for the publications the Organizer and Cross Roads, respectively). Furthermore, both cases involved certain state laws which permitted the Government to impose a prior restraint on any publication by barring their entry or circulation into the respective states in the interest of public order.

Here, public order was adjudged to be a term of wide connotation that includes state tranquillity and public safety. However, given that it is a term of such wide import, the importance of having a boundary demarcating aggravated forms of public disorder (which would include such actions that are "calculated to endanger the security of the State"3) from minor breaches of public peace. Notably, the dissenting Justice Fazl Ali was also of the opinion that "public order" and "public safety" are allied matters, however, the distinction he drew was from opposite terms, being "public disorder" and "public unsafety"4. He equated public safety with the security of the state, conversely designating public unsafety as insecurity of the State (and thus "connected with serious internal disorders" and such disturbances of public tranquillity that have the tendency to jeopardize State security), and public disorder as a term of wide interpretation, ranging from a riot to a local civic skirmish. Therefore, Justice Fazl Ali was of the opinion that public order, public tranquillity and security of State are synonymous and thus, interchangeable.

The introduction of the First Amendment saw the replacement of the verbiage "undermines the security of, or tends to overthrow, the State" with "reasonable" restrictions imposed "in the
interests of the security of the State ...
public order." The case of Ramji Lal Modi vs. State of UP (1957 AIR 62) is an essential starting point while considering the new language inserted in Article 19 (2). In this matter, the editor of another publication, Gaurakshak, petitioned the Court with a constitutional challenge to Section 295A of the Indian Penal Code, 1860. The Supreme Court examined the phrase "in the interests of" (as had been introduced vide the First Amendment to the Constitution) while considering the case and rejected the petitioner's appeal in the matter. The Court found this phrase to be significantly wider in scope than the phrase "for the maintenance of," in the context of reasonable restrictions on speech, thus permitting the State to have broader powers when it came to regulating speech. The Court also found that it may be so that a "law may not have been designed to directly maintain public order and yet it may have been enacted in the interests of public order." Therefore, as long as there is some nexus with the restriction of speech and interests of public order, any law or regulation framed in this regard would be good law.

As the jurisprudence on public order continued to develop, the principle of proximity was introduced. We first saw its emergence in Superintendent, Central Prison, Fatehgarh vs. Ram Manohar Lohia (1960 AIR 633), where the Supreme Court opined that the relationship between concerns relating to the maintenance of public order and the speech sought to be restricted must be proximate "to the achievement of public order," and any restrictions imposed, "in the interests of public order must also have reasonable relation to the object to be achieved, i.e., the public order." This position of law was further reiterated in S. Rangarajan vs. Jagjivan Ram (1989 SCR (2) 204), wherein the Court found that, "the anticipated danger should not be remote, conjectural or farfetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a 'spark in a powder keg.'" Thus, on our historical journey through the interpretation of "public order" through the ages, we find that the term not only extends to unlawful activities, but also any situation or act that disturbs public tranquillity, peace and/or safety. However, while the expression "in the interests of" does provide the Government with wider powers to restrict speech under Article 19 (2), in the context of public order, such restrictions require a proximate, imminent relationship, akin to a spark in a powder keg, between the same. Therefore, the test to determine whether any restriction imposed on speech on the grounds of public order must be invoked only when such speech, if published, poses a direct and actual danger to public interests, having such an incendiary effect that it is akin to setting aflame already disturbed kindling.




3. Romesh Thappar (Supra)

4. Brij Bhushan (Supra)

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