Kerala Police Act Amendment & Free Speech – The Big Picture – RSTV IAS UPSC

Kerala Police Act Amendment & Free Speech

Archives

Topic: General Studies 2:

• Government policies and interventions for development in various sectors and issues arising out of their design and implementation

In News: The government of Kerala has put on hold the implementation of the Kerala Police Act Amendment after facing massive backlash over the same. Chief Minister Pinarayi Vijayan on Monday said that due to concerns raised by the supporters of the Left Democratic Front, the law will not be amended. 

Why was an amendment brought in?

• The Kerala Government had decided to amend the Kerala Police Act in an effort to check the widespread malicious campaigns through social media and otherwise, which pose a threat to individual freedom and dignity, which are constitutionally ensured to citizens. 
• Criticisms and complaints against defamatory, untrue and obscene campaigns have come up from various quarters of the society. 
• Strong protests have emerged from the society on account of the merciless attacks on various sections including women and transgenders. There have been instances in which even the integrity of families has been affected, resulting in suicides. 
• The need for legally tackling this was raised even by the heads of media houses. It was in these circumstances that an amendment to the Kerala Police Act was envisaged. 
• The amendment evoked varied responses from several corners.  

What did the ordinance do?

• The ordinance amends the Kerala Police Act (a state-level criminal law), adding a new Section 118A. This provision punished any kind of “communication” – including statements, articles, social media posts, etc – which threatens, abuses, humiliates or defames a person or class of persons.
• The person making this communication has to know that what they’re saying is false, and that it will cause “injury to the mind, reputation or property” of the targeted person or class of persons.
• The punishment for this offence is up to three years’ imprisonment and/or a fine up to Rs 10,000. Even those who had just shared a post could be punished.

Why was it considered draconian?

When the proposal for this ordinance became known, digital rights activists at the time itself raised concerns about it. The Internet Freedom Foundation, for instance, made a representation to the Kerala government asking it to scrap the idea, pointing out that it could criminalise online speech because of its “vague expressions” and that it was “liable to subjective and arbitrary application.”

However, the ordinance that was approved by the Kerala government over the weekend was actually more vague than the original proposal,

• Expanding who could complain (persons rather than individuals, meaning companies and even deities),
• Added vague terms like abusing and humiliating (instead of restricting to those harming the reputation of an individual, which at least was connected to defamation) and
• Making Section 118A a cognisable offence, ie, one that the police could investigate without a magistrate getting to scrutinise the complaint and then directing a probe (which is the case with criminal defamation, for instance).

These problematic aspects of the ordinance meant that it was actually extremely similar to the old Section 66A of the Information Technology Act, that was struck down by the Supreme Court in the Shreya Singhal case in 2015 as overbroad and unconstitutional.

Notes from the Shreya Singhal Case

In the Shreya Singhal case, the apex court had noted the provision is not aimed at defamatory statements at all as for something to be defamatory, injury to reputation is a basic ingredient; which Section 66A does not concern itself with, it added. However, Section 118A in particular encompasses both defamation and injury to reputation and mentions them explicitly.

It had been argued before the court in Shreya Singhal case that Section 66A suffers from the vice of procedural unreasonableness and that safeguards like no court shall take cognizance of such an offence except on complaint made by the aggrieved person within six months from the date of the alleged offence, would not be available. However, the court had said it has not decided the procedural aspects of the section since it has struck it down “on substantive grounds”.

Section 118A of the Kerala Police Act makes the defamatory content and the other acts defined under it a cognizable and bailable offence; a police officer has the power to arrest a person only if his arrest is necessary to prevent or not to continue the offence, when it is manifestly evident that locating such person subsequently is not possible, such person is likely to hurt himself or any other person or there is “special and emergent circumstances” warranting the arrest”.

Conclusion

Any law or amendment that criminalises the online speech by users under vague expressions is liable to subjective and arbitrary application. This poses a real threat to freedom of speech and expression.

Connecting the Dots:

1. With social media becoming more and more socially and politically relevant, should there be a strong regulatory mechanism for it? Discuss