Draconian, an attack on FoE: Kerala Police Act amendment faces criticism

Political leaders, activists, lawyers have come down heavily on the Kerala govt for the ordinance.
Kerala Police rep pic
Kerala Police rep pic
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A day after the Kerala Police Act of 2011 was amended by an ordinance, there has been a lot of critical comments about it, coming from lawyers, political leaders, cyber experts and people from various walks of life. The amendment adds section 118A to the Act, which prescribes a three-year jail term for anyone who publishes anything that is 'threatening, abusing, humiliating or defaming a person or class of persons, knowing it to be false and that causes injury to the mind, reputation or property of such person or class of persons or any other person in whom they have interest shall on conviction'. This includes social media posts.

The amendment has been criticised for being draconian, and a repurposing of Section 66A of the IT Act which was struck down in 2015 by the Supreme Court. Renowned lawyer Prashant Bushan wrote, "Kerala has amended the Kerala Police Act by ordinance that provides jail term for any social media or cyber post that is deemed “offensive” or threatening. This is draconian & bound to be abused to silence dissent. Similar Sec 66A of the IT Act was struck down."

Section 66A that he mentions was earlier struck down by the Supreme Court calling it unconstitutional and draconian.

Section 118A of the Kerala Police Act also makes 'dissemination' - retweeting or sharing another's post – of content that's deemed objectionable an offence.

More lawyers find it problematic

Former law secretary of government of Kerala, BG Harindranath wrote on Live Law that the insertion of 118A would empower the police to take cognizance of the offence of defamation and similar offences. A cognizable offence would entitle the police to arrest anyone without warrant or permission of the court. And this is subjective of the police officer who may deem an act offensive. This is an unusual power given that such offences were earlier non-cognizable, writes Harindranath. The new section includes the words 'through any kind of mode of communication', which will be applicable to print media as well.

Supreme Court lawyer Pramod Puzhankara wrote that 118A is a black law that should be opposed without compromise. It is an attack on freedom of expression, citizen rights and democratic society. "According to the new amendment, if anyone thinks that someone's reputation has been hurt by any sort of communication, a case can be filed against them and they can be punished with three years of prison and a fine of Rs 10,000. Even if the person whose reputation has been allegedly hurt has no complaint, the police can still take a case. Which means that criticising KM Mani for bribery or Narendra Modi for Hindutva terrorism can be reason for police to arrest you."

Congress leaders oppose the amendment

Congress leader and former Union Minister P Chidambaram wrote that he is 'shocked by the law made by the LDF government of Kerala making a so-called 'offensive' post on social media punishable' by 3 years in prison.

Kerala’s leader of opposition Ramesh Chennithala said in a press release that the law is a violation of the fundamental rights including freedom of expression guaranteed by the Indian Constitution. "Even without a complaint, the police can take a cognizable case against media and individuals who express a political stance different from the government. It is clear that the government wants to silence those who speak against the CPI(M) and the Left government," Chennithala said.

Senior Congress leader and former Chief Minister of Kerala Oommen Chandy also said that the amendment which will put fundamental rights, media freedom and freedom of expression in danger should not be allowed. The Pinarayi government is trying to shut the mouth of the media after being in the thick of allegations, he claimed.

Other Congress leaders in Kerala like MK Muneer and KC Joseph, former ministers, have also condemned the law on Twitter.

Left leaders, activists condemn it

CPI(ML) member and activist Kavita Krishnan also condemned the law, addressing Kerala Chief Minister Pinarayi Vijayan. "Seriously @vijayanpinarayi?! @cpimspeak is opposed to draconian laws in India, defends free speech. Please don't shame the Left by having a CPIM Govt enact a draconian law," she wrote on Twitter.

Activist lawyer J Sandhya posted a petition made by Feminist Lawyers Network to the Governor of Kerala to review the state cabinet proposal to amend the police act. She writes, "I had earlier felt happy hearing the Chief Minister say that a new law would be brought against the cyber-attacks on women. But I was shocked to see the new law. It can blow up on anyone's face at any time. There is no women's perspective in a law that's meant for the protection of women. Have to appreciate the cleverness of those who drafted the law. If they are asked about bringing a law for women (on the cyber space), they can say, yes they did. But it would not be their fault when the ordinance is later struck down by the court since it is a violation of citizen rights. If someone further asks about women's protection, they will say, tell women to not use Facebook."

Sandhya also adds a note that she will be back if she is not arrested as per the new law for writing this post.

Author and historian Manu S Pillai also took to Twitter to 'condemn' it.

Another Twitter user Ravi Nair attached an earlier post by CM Pinarayi about protecting freedom of speech and expression. This was in August 2014 and Pinarayi Vijayan had written, "A citizen's freedom of expression is important. Narendra Modi's is a government that came to power using the possibilities of social media."

Ravi writes that the CM had a different opinion back then. "His govt Amending Kerala Police Act to punish those who publish “offensive” posts on social media with five year jail term (later reduced to three years) is completely opposite to his own stand," Ravi points out.

Cyber experts, Meme pages are against 118A

Cyber expert Anivar Aravind has posted a series of tweets comparing the old 118 (D) of Kerala Police Act which was invalidated by the Supreme Court and the new 118A to show how similar they are. He has also posted screenshots comparing 66A with 118A.

International Chalu Union (ICU), a widely popular meme page, wrote an explanatory post in October, saying how such a law could be misused against creative criticism, media reports and freedom of expression. It also says how the new law can be more problematic than sections 66A of the IT Act and 118D of the Kerala Police Act earlier struck down by the SC. The new law lacks clarity and authorities can misinterpret it, says the ICU post. While they would happily welcome a law against cyber bullying, they could not accept such a draconian law that can be misused in many ways and that goes against the fundamental rights, ICU writes. The Kerala Police Act already has a section called 120(O) which has been previously used to file cases against ICU members for political criticism which had not defamed anyone, says the post.

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