Updated: November 22, 2020 9:00:34 pm
The new section 118 (d) of Kerala law provided for the imprisonment, which lasted up to three years, of any person convicted of causing “annoyance” to any person “indecently” through “verbal statements or comments or telephone calls or calls of any kind or chasing or sending messages or mail by any means. ”I
Kerala Governor Arif Mohammad Khan on Saturday passed an ordinance promulgated by the LDF government in the State for sanctioning the “realization, manifestation, publication or dissemination” of any “matters” that may be construed as “threatening, abusive, humiliating or defamatory.” In 2015, the High Court, in a landmark ruling on IT Law Article 66A, also struck down a similar provision of the Kerala Police Law for violating the right to freedom of expression and for its vagueness.
Article 118 (d) of Kerala law provided for the imprisonment, which lasted up to three years, of any person convicted of causing “annoyance” to any person “indecently” through “verbal statements or comments or telephone calls or calls. of any writing or chasing or sending messages or mail by any means. ”In the Shreya Singhal ruling, the higher court had said that what it said about Section 66A would directly apply to the provision“ as it would cause indecent nuisance suffers from the same kind of vagueness and spaciousness … “
Section 66A makes it an offense to send any communication, through a computer or communication device, that could be said to be “extremely offensive, has a threatening character” or false information intended to “cause inconvenience, inconvenience, danger. , obstruction, insult, injury, criminal intimidation, enmity, hatred or will ”or any email or emails intended to“ cause inconvenience or inconvenience or mislead or mislead ”the recipient.
Section 118A, which was added to the Kerala Police Law as part of the amendment passed by the governor on Saturday, provides for a punishment similar to that of section 66A and section 118 (d), but is not limited to communications made through a computing resource or communication device, as explicitly stated “through any type of communication mode,” and not limited to disturbing someone, as is Section 118 (d).
It says “whoever does, expresses, publishes or disseminates… any matter or topic to threaten, abuse, humiliate or defame a person or class of people, knowing that it is false and that it causes damage to the mind, reputation or property of said person or class of persons or any other person in whom they have an interest ”will be punished by imprisonment of up to three years or a fine of Rs 10,000 or both.
The court of Judges J. Chelameswar and RF Nariman in the ruling on Section 66A had indicated that none of the expressions used in it are defined; Terms such as “threaten, abuse, humiliate or defame” are also not defined in Section 118A, but rather in Section 2 of the Kerala Police Law it states that words and expressions not defined in said law will have the meanings defined in the Code Criminal or Criminal Procedure Code of India. Of the four actions criminalized under Kerala’s latest amendment, only defamation is clearly defined in the IPC.
“It is quite obvious that a potential Section 66A offender and the authorities who must enforce Section 66A have absolutely no manageable standard by which to search a person for a crime under Section 66A,” the court had held supreme, although he found the provision to be unconstitutionally vague. Concluding that Section 66A includes protected speech and speech that is innocent in nature, the court had also said that it is liable “therefore, to be used in such a way as to have a chilling effect on freedom of expression.”
India’s Additional Attorney General Tushar Mehta (now Attorney General) had argued that the fact that the provision may be abused is not a reason to prove its validity and had assured the court that the government is committed to freedom of expression and that the provision be used only “when excesses are perpetrated by people over the rights of others”. However, the court later observed a guarantee from the current government, even if carried out faithfully, it would not bind any successor government.
In Shreya Singhal’s case, the high court had ruled that the provision is not aimed at defamatory statements at all, since for something to be defamatory, damage to reputation is a basic ingredient; It doesn’t refer to Section 66A, he added. However, Section 118A in particular covers both defamation and damage to reputation and mentions them explicitly.
It had been argued before the court in the Shreya Singhal case that Section 66A suffers from the vice of procedural irrationality and that safeguards as no court will take cognizance of such crime, except in the complaint filed by the aggrieved person within six months to from the date of the sentence. alleged crime, would not be available. However, the court has said that it has not decided on the procedural aspects of the section as it has repealed it “for substantive reasons.”
Section 118A of the Kerala Police Law classifies defamatory content and other acts defined therein as recognizable and bail offenses; a police officer has the power to arrest a person only if his arrest is necessary to prevent or not to continue the crime, when it is manifestly evident that it is not possible to locate that person later, it is likely that said person will hurt himself or to any other person or there are “special and emergent circumstances” that justify the arrest ”.
The Internet Freedom Foundation tweeted on Sunday that the amendment was “a replica of the unconstitutional Section 66A” and said that it criminalizes online speech by users “under vague expressions and is subject to subjective and arbitrary application. This represents a real threat to freedom of expression ”.
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