Despite the widespread criticism from various quarters, Kerala Governor Arif Mohammed Khan signed the controversial Kerala Police Act Amendment ordinance, which makes expressing, publishing or disseminating any matter that is “threatening, abusive, humiliating or defamatory” a punishable offence with imprisonment for up to three years. Last month, the state cabinet had decided to give more teeth to the Police Act by recommending the addition of Section 118A. This replaces the now-defunct Section 66A of the Information Technology Act, which made posting ‘offensive’ comments online a punishable crime.
The Governor, who had come back to the official residence recently after recovering from the COVID-19, signed the Kerala Police (Amendment) Ordinance, 2020. The addition stipulates either imprisonment for up to three years or a fine of up to Rs 10,000 or both to those who produce, publish or disseminate content through any means of communication with an intention to intimidate, insult or defame any person through social media.
“Whoever makes, expresses, publishes or disseminates through any kind of mode of communication, any matter or subject for 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 interest shall on conviction, be punished with imprisonment for a term which may extend to three years or with fine which may extend to Rs 10,000 or with both," reads the new section 118A.
While Section 66A (punishment for sending offensive messages through communication service) of the IT Act was a cognizable and non-bailable offence, the 118A is a cognizable and bailable offence.
The opposition parties had alleged that the amendment would give more power to the police and also curtail the freedom of the press, the charge which was rejected by Chief Minister Pinarayi Vijayan saying the decision had been taken based on factors such as abuse of social media to tarnish the image of individuals. However, experts disagreed with Kerala’s move, and have cautioned against it.
When the Supreme Court struck down Section 66A of the IT Act and Section 118D of the Kerala Police Act, it held speech to a standard where advocacy is fine but incitement to violence is not, journalist Nikhil Pahwa had earlier told TNM.
“I would doubt that this will survive constitutional scrutiny of the Supreme Court. The Kerala government would do well to not impose such draconian considerations on citizens, and learn from the mistakes they made with Section 118(d),” he had said.
The LDF government had said it had moved the amendment over the rising crime graph, fake propaganda and hate speech on social media since the outbreak of COVID-19, and added that since cyber attacks are a major threat to private life, it decided to amend the Police Act stating that existing legal provisions were inadequate to fight such crimes. The Kerala government had maintained that while the Supreme Court had repealed section 66A of the IT Act and Section 118(d) of the Kerala Police Act on the grounds that these were against freedom of expression, the Centre has not introduced any other legal framework.
"In this scenario, the police are unable to deal effectively with crimes committed through social media," the government had said. However, experts disagree.
Technology lawyer and digital rights activist Mishi Choudhary said there are enough laws under the Indian Penal Code for this. She also added such knee-jerk attempts which seek to address a deeper problem with a criminal punishment “end up in harassment of common people and to settle political scores. It will be tested per the Constitution and won't stand scrutiny,” Mishi said, echoing Nikhil’s point. She had also said that they should move towards prescribing civil remedies instead of jail terms.
With PTI inputs