Cyber security experts and lawyers have cautioned against the move, saying that this law may be even more stringent than Section 66A and may not hold up if challenged in court.

Kerala Chief Minister Pinarayi Vijayan wearing a white shirt addresses a press conference
news Law Friday, October 23, 2020 - 08:25

Kerala Chief Minister Pinarayi Vijayan on Wednesday took to Facebook to announce that the state is mulling a more stringent ordinance to tackle cyber crime and replace the now-defunct Section 66-A of the Information Technology Act, which penalised ‘offensive’ comments made online. Chief Minister Pinarayi Vijayan said that the government will be approaching the Governor for adding a section to the Kerala Police Act to penalise those who intend to “threaten, insult or harm the reputation of an individual” online.

“The Cabinet has recommended that a Section 118-A be added to the current Kerala Police Act. The amended clause says that “anyone who produces content, publishes or propagates it through any means of communication with an intention to threaten, insult or harm the reputation of an individual” will be punished with an imprisonment of 5 years or a fine of Rs 10,000 or with both,” the Chief Minister wrote.

Pinarayi cited the increase in crimes online which have ‘caused considerable distress to the women in our society’ and cyber attacks ‘turning into a threat to privacy,’ adding that the current law is inadequate to prevent such incidents. 

“The Supreme Court had read down Section 66A of the Information Technology Act 2000 and Section 118-D of the Kerala Police Act, 2011, stating that it was a threat to free speech. In its place, the Union govt had not brought any other law. Therefore the police are not able to effectively handle online crimes especially those on social media. We decided to push for the amendment after factoring in all this,” Pinarayi said.

However, cyber security experts and lawyers have cautioned against the move, saying that this law is even more stringent than Section 66A and may not hold up if challenged in court. 

The Supreme Court in 2015 had struck down Section 66A of the IT Act on March 24, 2015, stating that the liberty of thought and expression are cardinal “cardinal,” and had observed that the public's right to know is directly affected by the Act. The first PIL on the issue was filed in 2012 by a law student Shreya Singhal who sought an amendment in Section 66A of the Act after two girls Shaheen Dhada and Rinu Shrinivasan were arrested in Palghar in Maharashtra's Thane district. While one had posted a comment against the shutdown in Mumbai following Shiv Sena leader Bal Thackeray's death, the other had 'liked' it.

Along with 66A, the Supreme Court had also struck down Section 118-D of the Kerala Police Act, which had criminalised sending information that is “grossly offensive or that has a menacing character” online, and had a penalty of imprisonment up to three years as well as fine.

Journalist and founder of Medianama Nikhil Pahwa says that the Supreme Court, in striking down 66A and Section 118D of the Kerala Police Act, had held speech to a very high standard: that advocacy is fine, but incitement to violence is not. 

“At a time when most democracies in the world have decriminalised defamation, an amendment that threatens imprisonment of up to five years for insults or harm to the reputation of an individual, is definitely uncalled for. 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 says. 

Experts also point out that the scope of the amendment may also implicate those who simply ‘share’ the contentious tweet or Facebook status online. 

“The idea that this would cover both people who publish and propagate certain content means that it would apply to both both the creator of the content, as well as shares, retweets and probably even likes, since likes increase the propensity of content to spread. Remember that in case of 66A, when those two girls were arrested, one had posted a Facebook update, and another had liked it,” Nikhil adds. 

Technology lawyer and digital rights activist Mishi Choudhary also warns against ‘knee-jerk’ reactions that may end up being misused to harass common citizens.

“History shows that such knee jerk attempts at getting to address a deeper problem with 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 says. 

“There are enough laws under the Indian Penal Code to check any such issue. If they still feel the requirement, they should move towards civil remedies instead of always prescribing jail terms,” she adds.

Reacting to Pinarayi’s words which hinted that the new law sought to replace sections 118 D of the Kerala Police Act and Section 66 A of the IT Act, Advocate Apar Gupta says that the state needs to tread with caution. 

“Given that the present provision seeks to replace section 118D of the Kerala Police Act which was struck down as unconstitutional by the Supreme Court in the Shreya Singhal judgement, it would appropriate for the state government to exercise caution and to obtain legal opinion, as well as put the text of the proposal for the replacement to public consultation in a transparent manner,” he says. 

Prashanth Sugathan, technology lawyer and Legal Director at Software Freedom Law Centre India (SLFC.in), says that the law may end up being used for a broader scope than it is being mooted for, and may end up being misinterpreted.

“We already have a law on defamation. Although the current amendment - section 118 A - is still in the process of being drafted, according to initial reports and the CM’s message, it is being pushed as a law to address women’s safety on the internet. This was exactly how Section 66A of the Information Technology Act 2000 was pushed. We know that this was read down by the Supreme Court for violating the right to freedom of speech and for vagueness,” says Prasanth.

He also added that depending on how vague or specific the text of the amendment is, the law could be prone to misuse. “The vaguer the text, the more scope there is for misinterpretation and misuse. This can become a problem when it comes to law enforcement.” Prasanth also added that the current provision in the IPC for defamation is a non-cognisable offence - this means that a police officer cannot arrest a person without a warrant or carry out an investigation without a court order. “This led to certain checks and balances in law enforcement,” he adds.

However, with the new amendment likely to be passed as a non-bailable, cognisable offence, it will add more problems to the law enforcement, Prasanth says.

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