Without new ordinance revoking Kerala Police Act amendment, it continues as law

The CPI(M)-led Left Democratic Front government in Kerala introduced Section 118A in the Kerala Police Act, via an ordinance on Sunday, November 22, to criminalise anyone who expresses, publishes or disseminates information, which is threatening, abusive, humiliating or defamatory.

Then, on Monday, November 23, Kerala Chief Minister Pinarayi Vijayan said the new section 118A of the Kerala Police Act would be kept in abeyance. It has, however, not been withdrawn. Until another ordinance is signed to withdraw this, it remains as a law.

The government’s retreat came after the new law invited severe criticism from CPI(M) and CPI central leaders, lawyers and citizens alike. The new ordinance states that “Anyone publishing or disseminating information, which is threatening, abusive, humiliating or defamatory message through any means of communication, is liable to face imprisonment of five years or fine of Rs 10,000 or both”. The Kerala government said the amendment was to prevent cyber-attacks against women and children.

However, this law enables the police to take action against such posts. In 2015, the Supreme Court had repealed a similar law, Section 118(d) of the Kerala Police Act, along with Section 66A of the IT Act. The petitioner in this case, Anoop Kumaran, has filed a petition in the Kerala High Court along with Software Freedom Law Center (SFLC) questioning the new Section 118A. He said that the new amendment was worse than the repealed law.

Senior constitutional lawyer Rajeev Dhavan was highly critical of the amendment and went as far as to say that it was a “horrible amendment”. “This amendment will not pass muster in court. It is worse than any legislation passed by the British. People have a right to talk, to criticise public persons. People in public life cannot be so thin-skinned so as to use this Act. Ultimately, we have to ask who will use this Act and why. Therefore, like so many laws such as criminal defamation, people will use these laws against each other and target each other. It is an invitation to disaster,” he underscored.

Agreeing with Dhavan and seconding his argument was activist and human rights lawyer Prashant Bhushan. He pointed out that this new Section 118A, which has been added was completely unnecessary as all the provisions mentioned already exist in the Indian Penal Code. “I have always said criminal defamation must be done away with. Take for example the case against Priya Ramani by member of Parliament MJ Akbar. It is nothing but harassment,” said Bhushan.

This new Act covers defamation, but “there is already a law for defamation, which was not struck down by the Supreme Court”, asserted Dhavan. “When you look at the seven restrictions which exist in Article 19(2), then under what section will this amendment fall under – public order or defamation? Any new law on freedom of speech must fall within the seven categories under Article 19(2). Secondly, the law must be reasonable – this is neither reasonable nor proportionate. It violates every civilised principle of freedom of speech that exists,” highlighted Dhavan. Article 19(2) of the Constitution authorises the government to impose, by law, reasonable restrictions upon the freedom of speech and expression “in the interests of public order”.

With this new amendment, it would seem that the police can arrest a person in the midst of court proceedings and later on it can come to light that what the person said was true. “The law that has been framed, can be misused. This law should not have been brought. This law can give more power to the police to harass. If I say something against the Prime Minister or the Chief Minister, as I always do, under this new law it can be treated as an offence. Now, the police can file cases. It can be misused, though per se there may be nothing wrong with the law. Given the manner in which the police behaves these days, it is tailor-made for misuse,” said Bhushan.

Apar Gupta, a lawyer and the Executive Director of the Internet Freedom Foundation (IFF), said while the ordinance does not specify which media, it is evident that it is intended to police online media. He was also a part of the 2015 petition in the Supreme Court to revoke Section 66A. “The text of the law has changed from ‘offensive’ to ‘humiliating’, but the underlying issues with this law remain. There are pre-existing sections under the Indian Penal Code for hate speech, threatening and abusing people and for spreading disinformation. Bringing in a vague law to empower the police is harmful,” added Gupta.

“This provision materially recasts the old provision with new phrases, but the core problem of weakness in the law exists. The weakness of this law is that it allows a high degree of flexibility to the police for prosecuting social media users. Quite often, we have seen through our own experience that the law is misused against online commentary for criticising public officials or questioning state programmes. So, by itself it impacts freedom of speech and expression,” explained Gupta.

History of Section 66A of the IT Act

In 2015, the Supreme Court declared Section 66A of the Information Technology Act, 2000, unconstitutional in the Shreya Singhal v Union of India case. The SC said that this ruling would directly apply to Section 118(d) of the Kerala Police Act as it also violates Article 19(1)(a) of the Constitution. “It suffers from the same type of vagueness and over breadth, that led to the invalidity of Section 66A,” said Gupta. Article 19(1)(a) of the Constitution guarantees freedom of speech and expression to all citizens.

The scrapped Section 66A of the IT Act read, “Any person who sends by any means of a computer resource any information that is grossly offensive or has a menacing character; or any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult shall be punishable with imprisonment for a term which may extend to three years and with fine”.

The removed Section 118(d) of the Kerala police Act stated that it would be considered an offence if any individual to caused “annoyance to any person in an indecent manner by statements or verbal or comments or telephone calls or calls of any type or by chasing or sending messages or mails by any means.”

“The phrases as mentioned in the Section 118 (A) such as, “insult” and, “harm” are elastic and devoid of context and precise definition. Hence, the provision is in violation of the decision of the Hon’ble Supreme Court in Shreya Singhal v. Union of India and puts users of the internet at risk,” said Gupta.