On November 21, the Governor of Kerala promulgated the Kerala Police Ordinance (Amendment), 2020 as the legislative assembly is not in session. The cabinet had presented its recommendation to the governor in late October. See this ordinance, a new Section 118A has been introduced in the Kerala Police Act, 2011.
In general, this is seen as a blatant attack on free speech.
The new Section 118A says:
Penalty for carrying out, expressing, publishing or disseminating any matter that is threatening, abusive, humiliating or defamatory:
“Whoever carries out, expresses, publishes or disseminates through any type of communication medium, 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 people or any other person in whom they have an interest, in case of conviction, will be punished with imprisonment for a period that can be extended to three years or with a fine that can be extended to ten thousand rupees or with both. “
Counteracts the freedom of expression guaranteed by the constitution
The issue of freedom of expression is so well resolved and so well known, through a string of Supreme Court rulings since 1950, that it would be redundant to discuss it here.
In many ways, the new legal section in Kerala is deeply reminiscent of the notorious section 66A of the Information Technology Act 2000, which was repealed by the Supreme Court in the case of Shreya singhal (2015) as ultra vires the Constitution.
Interestingly, most people seem to have forgotten that in the same ruling, the Supreme Court struck down section 118 (d) of the Kerala Police Law also as unconstitutional.
Section 118 (d) read:
“Any person who causes annoyance to any person in an indecent way through verbal or telephone statements or comments or calls of any kind or by chasing or sending messages or emails by any means; he will be punished, when found guilty, with imprisonment of up to three years or with a fine not exceeding ten thousand rupees or both. “
The Supreme Court held,
“What has been said about Section 66A would apply directly to Section 118 (d) of the Kerala Police Act, as indecent nuisance suffers from the same kind of vagueness and breadth that led to the invalidity of the Section 66A, and for the reasons given to repeal Section 66A, Section 118 (d) also violates Article 19 (1) (a) and is not a reasonable restriction on said right and is not exempted under any of the matters contained in Article 19 (2) it is declared unconstitutional “.
It can easily be seen that the new Section 118A attempts to introduce the unconstitutional Section 118 (d) of the Kerala Police Law or Section 66A of the Information Technology Law sneakily, through the back door, with a small facade.
The forbidden sections spoke of vague notions like “nuisance” and “inconvenience”, which are not defined in the law anywhere. The new Section 118 (A) speaks of an equally vague concept, “humiliating”, which is also not defined in the law anywhere.
At Shreya singhal judgment, the Supreme Court had cited with approval a landmark judgment of the United States Supreme Court in the case of Grayned against the city of Rockford, “A vague law inadmissibly delegates basic policy issues to police, judges, and juries for resolution on an ad hoc and subjective basis, with the dangers of arbitrary and discriminatory application … Uncertain meanings inevitably lead citizens to ‘divert much more from the illegal zone’ … than if the limits of the prohibited areas were clearly marked. “
The amendment to the Kerala Police Law is therefore an impious attempt to deceive the Supreme Court. For the reasons stated at length in Shreya singhalThis is also likely to be overturned by the Supreme Court.
Potential for abuse and rumors of a police state
It needs no explanation that the Ordinance has the potential for great abuse against laity and the media alike. Give the police huge and unbridled powers. Anyone can be accused of humiliating someone and prosecuted. Furthermore, since the new law would allow the police to act suo motu, it obviously increases the possibility of abuse.
Furthermore, since cyberspace has no jurisdictional boundaries, it means that an online dispute with a Malayali living anywhere in the world could theoretically result in a case being filed in his hometown in Kerala, alleging that he had been ‘humiliated in the eyes of his friends out there. ‘ If the accused lives in another corner of the country, his plight can easily be imagined.
The section not only challenges Shreya singhal judgment is actually redundant. Even if it is argued that it is intended to protect women and children from harassment or abuse in cyberspace, there is no evidence that the goal cannot be achieved with existing laws. They include Section 67 of the TI Act (punishment for posting or transmitting obscene material electronically); Section 506 IPC (punishment for criminal intimidation); Section 509 IPC (word, gesture or act intended to insult a woman’s modesty); Section 500 IPC (punishment for defamation); or Section 119 (b) of the Kerala Police Law (taking photographs or recording videos or posting them anywhere in a way that affects the reasonable privacy of women).
There is no study duly supported by data that can support a presumption about the insufficiency of the existing laws. Furthermore, if existing laws have been found ineffective, they should have pointed this out in appropriate forums such as the annual DGP and IGP conference, which is usually attended by both the prime minister and the interior minister, or in official communications. This was never done.
A politician misstep
It is not possible to conjecture what exactly may have precipitated this movement. However, it is known that lately the media has been critical of the Left Democratic Front government and the prime minister has also accused a section of the media of participating in a political conspiracy against the government. Then, in September, there was an incident involving a voice-over artist Bhagyalakshmi and two other female activists assaulting a YouTuber Vijay Nair for allegedly making derogatory and sordid comments against women on his YouTube channel. They said they did it because the police had not taken any action. In any event, they could only get advance bond from the higher court.
Some of the people feel that in view of these incidents and the like, public sentiment was somewhat against the critical comments that were made on social media. However, public sentiments are fleeting. Laws that ride the wave of public sentiment, or sugarcoated to pamper public sentiment, are often abused to suppress that public.
It appears that the Cabinet had been wrong to recommend this amendment, without its implications and ramifications being properly explained.
They would do well to withdraw the amended law immediately and admit that it was a terrible, if inadvertent, mistake. If the law were dismissed as ultra vires the constitution by the Supreme Court, the Communists would lose a great deal of political capital.
During the debates in the Constituent Assembly, Somnath Lahiri, the only communist member in the Constituent Assembly, stated: “I am compelled to say that these are fundamental rights from the point of view of a police officer and not from the point of view of a freedom and fighting nation. Here, any rights that are granted are removed by a condition. “
From Lahiri’s lofty and vigorous words to this draconian law, it is a terrible downfall. This is nothing more than a regressive move by a progressive party, which prided itself on being called the guardian of the conscience of political morality in the country.
Ironically, the CPI (M) leader, P. Rajeeve, had delivered an energetic speech in Rajya Sabha against Section 66A of the TI Law, and the CPI (M) election manifesto during the 2019 general elections had demanded that the Center will repeal the defamation of the IPC.
The biggest danger of such legislation is that if the Kerala government does not withdraw the Ordinance, it will act as an example for other states to establish their own similar laws. Many of them have a regrettable record of harassing the media.
If we, the people, do not attack this law, we will lose the moral right to criticize any misfortunes of the right (or anyone else) in the future and freedom of expression will be seriously threatened.
The left, straying onto the path to the right, has been shot in the foot. It is disappointing that a government of the left has erred in this untimely and untimely act of intolerance regarding free speech, which the right has often been accused of being eager to trample. In a classic Freudian slip, an assiduously cultivated veneer has suddenly fallen from a higher moral pedestal. With a howler like this to tarnish his reputation, the left runs a grave risk of becoming the right, minus the cow and the temple.
Dr. NC Asthana, a retired IPS officer, has been a DGP Kerala and a CRPF and BSF ADG for a long time. The views are personal. He tweets @NcAsthana.
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