Kerala's new 118A law is Section 66A in new bottle

The CPI(M)-led government in Kerala has introduced Section 118A in the Kerala Police Act, to penalise ‘offensive,’ ‘abusive,’ and ‘threatening’ social media posts.
Kerala CM Pinarayi Vijayan
Kerala CM Pinarayi Vijayan

The Kerala government has been criticised for its new law to criminalise ‘offensive’ posts on social media, with experts as well as the opposition calling it draconian and an attempt to stifle not only dissent but also freedom of speech and expression. The CPI(M)-led government in Kerala has introduced Section 118A in the Kerala Police Act, via an ordinance, which received the Governor’s assent on Saturday.

According to the new law, “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 have interest shall on conviction, be punished with imprisonment for a term which may extend to three years or with fine which may extend to ten thousand rupees or with both.” This means that a person can face three years in jail and a fine of Rs 10,000 for any social media post that is considered “offensive” or “defamatory”. This is not just for writing or creating such a post, but those who share that post or opinion will also face the same kind of punishment. The law is unspecific and indistinct and can be indiscriminately misused by individuals or even the government and the police, who may use it against those whom they simply disagree with.

A similar law was repealed by the Supreme Court in 2015 along with Section 66A of the IT Act — Section 118(d) of the Kerala Police Act —  for being a threat to free speech. Admittedly, the Kerala government has said that this new law has been brought in to ‘fill the gap’ left by the repealing of the two laws, which leaves current laws ‘inadequate’ to prevent crimes online which have ‘caused considerable distress to the women in our society’ and cyber attacks that are ‘turning into a threat to privacy’.

Image: Anivar Aravind

The text of the new law is eerily similar to Section 66A, which was repealed in 2015. Anivar Aravind, a public interest technologist, tweeted the similarities between the two laws.

Here’s what 66A of the IT Act said: “Any person who sends, by means of a computer resource or a communication device, (a) any information that is grossly offensive or has menacing character; or (b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device; or (c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.”

Image: Anivar Aravind

Experts say the new law is another affront on free speech and its wide and vague ambit leaves it vulnerable to rampant misuse. Moreover, though the Kerala government claims it is to fight cyber crimes against women, that has not found any mention in the law either.

“It is draconian. Section 66A was limited to communications online but this 118A applies to any mode of communication. It's not related to women’s safety or anything that the government had earlier said. This is a speech law, restricts speech without any domain limitation, it restricts Article 19 of the Constitution in an active way and is not protected by Article 19(2),” says Anivar.

Anivar points out that this law can be misused by people who may want to sue over the smallest disagreements and by those who are already misusing defamation laws; and it will not be restricted to political criticism or religious opinion formation — “all ‘likes’, blogs, ‘unfriending’ now will be settled at police stations,” he says. He adds that it may lead to a flurry of FIRs and pose challenges in law enforcement. “It will effectively be a DDOS attack (denial-of-service attack) on the police functioning on the state, as well as on the police. There will be a huge rush of FIRs filed against all kind of issues between people.”

He explains that “class of persons” as mentioned in the law can even mean deities, any group, organisation, brand or company. “People are already misusing speech laws for any kind of criticism against brands. This new law will be a business threat and a people threat well as well. If someone calls a company’s customer care and there is a disagreement, the customer can easily bring the company to court saying that there was a defamation issue,” says Anivar. 

Another aspect of worry is that it gives power to the police to file suo-motu cases against anyone. Section 118A of the KP Act will be a cognisable offence, which means the police do not need a warrant to arrest a person and to start an investigation against them.

“Section 66A gave criminalisation power to the police. And so will this. Any police officer can file cases, this effectively gives police the power to take action against any citizen under this law,” Anivar says.

Image: Anivar Aravind

The Internet Freedom Foundation (IFF) has also made a representation to the Kerala government asking it to reconsider the law. “It criminalises online speech by users under vague expressions and is liable to subjective and arbitrary application. This poses a real threat to freedom of speech and expression,” the IFF has said. 

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