NEW DELHI: Kerala’s new ordinance purportedly enacted to protect women and children from cyber-attacks is similar to Section 118 (d) of the Kerala Police Law that the Supreme Court had annulled in 2015 in the Shreya Singhal case, calling it a violation of the right to freedom of expression.
The introduction of Section 118A into the Kerala Police Act and its inclusion in the existing Section 125 of the Act makes offenses under the new provision recognizable, although liable to bail. However, it gives the police unlimited power to arrest anyone whom they suspect will continue to make statements in all types of media “threatening, abusing, humiliating or defameting” any person or class of person.
Anyone found guilty under Section 118A will be punished with imprisonment for up to three years or a fine of up to Rs 10,000, or both.
Section 118A makes no specific reference to the increase in crimes against women or children, a ruse given by the LDF government to pass the new law through an ordinance. Nor does it speak of the insufficiency of the existing provisions under the IPC or the Information and Technology Law to deal with such crimes.
The general scope of Section 118A, when it says “whoever makes, expresses, publishes or broadcasts through any type of communication medium” will include speeches delivered on the road or on public platforms, a phone call or a post on social media , an article in a newspaper or a web portal, and programs on television channels.
Compared to Section 118A, its previous avatar, Section 118 (d), seems smoother. The latter ruled that the police could detain any person “who annoys any person in an indecent way by means of verbal statements or comments or telephone calls or calls of any kind or by pursuing or sending messages or emails by any means.”
The lighter section 118 (d) had drawn strong criticism from the SC in the Singhal case. In crossing it out, he had said: “Information that can be very offensive or that causes annoyance or inconvenience are undefined terms that bring a great deal of protected and innocent speech to the network. A person can argue or even defend, by means of Broadcast Writing via the Internet, information that may be a point of view or point of view related to governmental, literary, scientific or other matters that may be unpleasant for certain sectors of society.
“It is obvious that the expression of a point of view on any matter can cause annoyance, inconvenience or can be tremendously offensive for some. A certain sector of a particular community may be seriously offended or annoyed by communications over the Internet of ‘ liberal views’, “the SC had said.
Providing an additional reason to void Section 118 (d), it had said: “We therefore hold that the section is unconstitutional also on the grounds that it takes within its scope protected speech and speech that is innocent in nature.” .
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