The recent controversial statements made by yoga tycoon and businessman Ramdev dismissing allopathy and COVID-19, AVANI BANSAL writes that his apology backtracking from his claims is not sufficient. She lays out the various legal provisions under which his statements are actionable as criminal offences, and makes the case for him to be prosecuted.
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IS it sufficient to commit a crime and get away by saying – sorry? No country's criminal jurisprudence allows this. Yet, the Union Health and Family Welfare Minister, Dr. Harsh Vardhan, found it appropriate to merely write a letter to Ramdev in response to his statements calling allopathy stupid and claiming that lakhs of people have died due to allopathic medicines. The videos of his statements are available on the internet.
Yet, the health minister writes in his letter that it is 'unfortunate' that a person of Ramdev's stature does not know of the benefits and achievements of modern medical science and allopathy. What is surprising is that the health minister does not find it 'illegal' alongside 'unfortunate', and stops short of asking Ramdev to withdraw his statements, instead of initiating appropriate legal action against him.
Also read: IMA demands strong action against Ramdev for blaming allopathy for majority of COVID deaths
Since the union government has invested so much money and energy into projecting India as an exemplar for the world, a vishwa guru, does it not worry that having the likes of Ramdev go unpunished, makes us a laughing stock of the world, while also proving unequivocally that it is not fully committed to controlling fake news and the menace of misinformation?
Does it also not show that we, as a nation, do not respect our doctors, scientists and frontline warriors who are working tirelessly to save lives, as some snake oil salesman makes insensitive jokes about them, that too fuelled by self-interest. We surely can't condone it as just a personal opinion, as Ramdev has made specific claims of certain medicines not working, without providing an iota of credible evidence to back his claim.
The legal position on this seems to be clear.
First, a person cannot get away with a crime by simply apologising or withdrawing his statements, when there is a clear legal provision that makes his act a punishable offence.
Second, there are legal provisions that state that making false claims about disasters or epidemics which may create unrest amongst people, is punishable.
Third, by taking no action against Ramdev, the health minister may be setting an example, where anyone can get away saying anything, without being held accountable for the same.
Finally – what about the fact that these irresponsible statements will continue to remain on the internet and in circulation, influencing not just the followers of Ramdev but also many others, who may consequently avoid going to hospitals when suffering from COVID?
Here is a quick perusal of the laws that may be invoked against Ramdev:
The Indian Penal Code, 1860 (IPC)
505. Statements conducing to public mischief—
(1) Whoever makes, publishes or circulates any statement, rumour or report,—
(a) with intent to cause, or which is likely to cause, any officer, soldier, [sailor or airman] in the Army, [Navy or Air Force] [of India] to mutiny or otherwise disregard or fail in his duty as such; or
(b) 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; or
(c) with intent to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community, shall be punished with imprisonment which may extend to [three years], or with fine, or with both. [emphasis added]
Arguably, both Section 505 (1) (b) and (c) can be invoked against Ramdev, as a lot of people who are losing their family members, relatives and friends to COVID may be provoked or incited to take law into their own hands against doctors and hospitals, taking Baba Ramdev's statements seriously. In fact, just last month, there was a reported incident of family members of a woman, who allegedly died of COVID, attacking the hospital staff at the Apollo Hospital in south Delhi, with pictures of blood on the hospital floor, going viral.
In the current situation, when a person with a massive following like Ramdev makes such reckless statements, it is bound to have an effect on people's minds, and should attract the test applied to celebrities in such cases.
The Epidemic Disease Act, 1897 (EDA)
3. Penalty—
Any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under section 188 of the Indian Penal Code (45 of 1860).
IPC
188. Disobedience to order duly promulgated by public servant—
Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, 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. [emphasis added]
Explanation—It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm.
Disaster Management Act, 2005 (DMA)
52. Punishment for false claim—
Whoever knowingly makes a claim which he knows or has reason to believe to be false for obtaining any relief, assistance, repair, reconstruction or other benefits consequent to disaster from any officer of the Central Government, the State Government, the National Authority, the State Authority or the District Authority, shall, on conviction be punishable with imprisonment for a term which may extend to two years, and also with fine.
54. Punishment for false warning—
Whoever 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 fine.
60. Cognizance of offences—
No court shall take cognizance of an offence under this Act except on a complaint made by—
(a) the National Authority, the State Authority, the Central Government, the State Government, the District Authority or any other authority or officer authorised in this behalf by that Authority or Government, as the case may be; or
(b) any person who has given notice of not less than thirty days in the manner prescribed, of the alleged offence and his intention to make a complaint to the National Authority, the State Authority, the Central Government, the State Government, the District Authority or any other authority or officer authorised as aforesaid.
It is to be noted that the relevant section in this case, i.e. Section 3 of the EDA and Sections 53, 54 and 60 of the DMA requires prior sanction by the concerned public officer, state, centre, district or any other concerned authority. Thus, it becomes incumbent on State authorities to take appropriate actions against Ramdev or for the courts to take suo motu cognisance.
An important related incident was the recent statement by All India Institute of Medical Sciences, Delhi Director, Dr. Randeep Guleria that computed tomography (CT) scans were not needed for mild COVID, and that one CT scan was equivalent to 300-400 chest X-rays and could pose potential risks of cancer, if the scans were overused.
In response to Dr. Guleria's statements, the Indian Radiological and Imaging Association expressed its shock and disappointment, but no legal action was taken. Now, in this case, there could at least be some room for medical science debate on the effectiveness and potential use versus harm of CT scans. But in Baba Ramdev's case, his statements are so sweeping that he brandishes all of allopathy in one broad stroke as 'stupid' and 'deewaliya' (bankrupt).
It must not be missed that there is also a direct conflict of interest as Baba Ramdev's multinational corporation Patanjali Ayurved had controversially and falsely claimed that it had developed a World Health Organization-approved COVID medicine. This is important because Ramdev cannot take the defence of free speech under Article 19(1)(a) of the Indian Constitution as the 'who factor' along with the context and occasion must be taken into consideration while deciding on the legality of the statement made by Ramdev.
In light of the fact that Ramdev has a massive following, it was extremely malicious and deliberate of him to make a statement which would create unwarranted public confusion and disorder. Further, it has to be noted that our country is the midst of dealing with the second wave of a deadly epidemic.
At the peak of such a pandemic, when citizens of the country require utmost medical care, the making of a statement which not only discredits the medical fraternity but also turns the common man against it, should not be given the protection of free speech.
Thus, when the factors of the person who had made the statement and the context and occasion of the statement are taken together, it is clear that it was made maliciously and deliberately.
In its recent judgment in the case of Amish Devgan v. Union of India, 2020 SCC OnLine SC 994, the Supreme Court has advised the following to determine the malice of speech:
"The view expressed by the Bombay High Court in Gopal Vinayak Godse [Gopal Vinayak Godse v. Union of India, 1969 SCC OnLine Bom 88 : AIR 1971 Bom 56] lays considerable emphasis on the words itself, but the view expressed in P.K. Chakravarti [P.K. Chakravarti v. King Emperor, 1926 SCC OnLine Cal 96 : AIR 1926 Cal 1133] and Devi Sharan Sharma [Devi Sharan Sharma v. Emperor, 1927 SCC OnLine Lah 454 : AIR 1927 Lah 594] take a much broader and a wider picture which, in our opinion, would be the right way to examine whether an offence under Section 153-A clauses (1)(a) and (b) (IPC) had been committed. The ordinary reasonable meaning of the matter complained of may be either the literal meaning of the published matter or what is implied in that matter or what is inferred from it. A particular imputation is capable of being conveyed means and implies it is reasonably so capable and should not be strained, forced or subjected to utterly unreasonable interpretation. We would also hold that deliberate and malicious intent is necessary and can be gathered from the words itself—satisfying the test of top of Clapham omnibus, the who factor—person making the comment, the targeted and non-targeted group, the context and occasion factor—the time and circumstances in which the words or speech was made, the state of feeling between the two communities, etc. and the proximate nexus with the protected harm, to cumulatively satiate the test of "hate speech". "Good faith" and "no legitimate purpose" test would apply, as they are important in considering the intent factor. [emphasis added]
Along with taking appropriate action against Ramdev, there is also the question about his statements remaining on the internet and social media forever, even when he has apologised about them.
The Union Ministry of Electronics and Information Technology issued an advisory to curb false news/misinformation on coronavirus on 20 March 2020 directing all social media platforms to take immediate action to disable/remove such content hosted on their platforms on a priority basis. Therefore, all social media companies must remove his videos containing the impugned statements with immediate effect.
In another of the Supreme Court's judgments in the case of Alakh Alok Srivastava v. Union of India, 2020 SCC OnLine SC 345, it was observed:
"In particular, we expect the Media (print, electronic or social) to maintain a strong sense of responsibility and ensure that unverified news capable of causing panic is not disseminated. [emphasis added] 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 a period of 24 hours as submitted by the Solicitor General of India. We do not intend to interfere with the free discussion about the pandemic, but direct the media refer to and publish the official version about the developments. It is well known that panic can severely affect mental health. We are informed that the Union of India is conscious of the importance of mental health and the need to calm down those who are in a state of panic."
In this judgment, the apex Court made note of the huge responsibility that the media has. It was noted that unverified news capable of causing panic should not be disseminated through the media.
In this debate, it is pertinent to keep in mind that we cannot throw the baby out with the bathwater. It is not suggested that any and all discussion on COVID be barred. But patently irresponsible statements that are fake and disruptive in nature, driven by clear vested interest must surely not go unpunished.
It is also worth reiterating that the apology issued by Baba Ramdev is not sufficient, morally or legally. When a celebrity makes statements, common people are likely to believe it. While he has expressed regret for his statement, and said that he was merely reading a WhatsApp message, he has not unequivocally denied his specific allegation about the medicines Remdesivir and Fabiflu. His statements are a matter of public record now, if not taken down from the public domain. Also, it sets an undesirable precedent that powerful people can say anything on air and get away with it.
The law is equal for everyone. No so-called baba, no matter how influential and well-connected, should be allowed to get away with defaming the hard-earned progress of modern medicine. If he is, it is the entire nation that is collectively rendered stupid.
When the Maharashtra police can arrest as many as 342 individuals for spreading fake news concerning the pandemic (as of May 16, 2021); the Uttar Pradesh police can arrest a fake godman Ahmad Siddiqui for calling himself 'Corona Wale Baba' for fraud and forgery; the Odisha police can arrest a person for posting false information on Facebook regarding a person returning from Kerala – why should Ramdev go scot-free, when he freely airs his slanderous views on allopathy and says it has resulted in lakhs of deaths, while the whole of media covers it extensively? Unless Ramdev is above the law!
While politicians, like the union health minister, may have political compulsions, it is vital to set an example so that others do not follow in his footsteps and make such egregious and deeply problematic statements that also amount to a criminal offence.
Also read: With his Bogus Claims, Ramdev is Pushing Patanjali Products and BJP's Anti-Science Agenda
Not doing so till now has led his close aide and co-founder and majority stake owner of Patanjali Ayurved, Balkrishna, to come in support of Ramdev, by making the following contentious tweet:
"As part of the conspiracy to convert the entire country into #Christianity, #Yoga and #Ayurveda are being maligned by targeting @yogrishiramdev jee. Countrymen, wake up now from the deep slumber Folded hands otherwise the generations to come will not forgive you."[translated from the original Hindi]
Making this illogical and untrue connection between disputing Ramdev's statement and a supposed plot to convert the nation into Christianity is not only in terrible taste, but it is also illegal under Sections 153A and 295A of the IPC.
Section 153A of IPC makes statements promoting religious hatred punishable with five years of imprisonment and a fine. Section 295 A of IPC makes deliberate and malicious acts intended to outrage religious feeling punishable with four years of imprisonment and a fine.
Therefore, if this uncontrolled disinformation campaign against allopathy has to stop, legal action and not mere apologies are the need of the hour. This is not just about protecting the respect that people have for allopathy or ensuring that this does not devolve into a putative conflict between allopathy and Ayurveda, but also about protecting the dignity and respect of all medical professionals in this country. They have been our frontline warriors in this difficult time for the last fifteen months, and the least we can do is to ensure that this attack against them does not go unpunished.
(Avani Bansal is a practicing Advocate at the Supreme Court of India, and Vice-President of All India Professionals' Congress, Delhi. Afifa Sultan, a law student at the Aligarh Muslim University, assisted in writing this. The views expressed are personal.)