Kerala Chief Minister Pinarayi Vijayan has put on hold the new legislation that penalised expressions or speech which was perceived to be threatening, abusive, humiliating or defamatory. Vijayan's announcement on Monday comes two days after Kerala Governor Arif Mohammed Khan signed off on an ordinance amending the Kerala Police Act, 2011 inserting the controversial Section 118A.
"With the announcement of the amendment, different views arose from different quarters. Concerns were expressed by those who supported the Left Democratic Front and those who stood for the protection of democracy. It is not intended to amend the law in this case. Detailed discussions in this regard will be held in the Assembly and further steps will be taken in this regard after hearing the views of all parties," Vijayan said in a press release.
According to the impugned Ordinance, "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."
Any mode of communication is perceived to include posts on social media as well. Section 118 of the Kerala Police Act penalises anyone who causes "grave violation of public order or danger". Section 118A is included to add forms of expression as well. The ordinance also amended Section 125 of the act to make offences under section 118A cognisable and bailable.
Section 118A beyond scope of police powers: Plea in HC
At least three petitions challenging the impugned ordinance was filed in the Kerala High Court over the weekend and today.
Former lawmakers and Revolutionary Socialist Party (RSP) leaders NK Premachandran, Shibu Baby John and AA Azeez filed a plea. Kerala State BJP President K Surendran moved a second plea, while Delhi based Advocate Jojo Jose filed the third.
"Section 118A is an attempt to resurrect the same approach to regulation of free speech that had been declared to be unconstitutional…" the plea by the RSP leaders read. "Many of the expressions used in Section 118A are only cosmetically different from the expressions which were already considered and rejected as vague in Shreya Singhal," it further added.
"Primarily, the offence created is not the one which falls under the category of public order or danger and the same is beyond the scope the Act itself," Surendran's plea read.
Law intended to combat untruthful and obscene propaganda
In a press release, Vijayan said: The state government has decided to amend the Kerala Police Act in an attempt to curb widespread propaganda, both on and off social media, that calls into question the individual liberty and constitutional dignity of the citizen.
The state government received "criticism and complaints from various quarters of the society against defamatory, untruthful and obscene propaganda." These "violent attacks on women and transgender people are causing a great deal of protest in society, he added. "There have been experiences that have even affected family ties and have led victims to commit suicide. The media chiefs also demanded that legal action be taken against this. It was in this context that the Police Act was proposed to be amended, the chief minister said rationalising the amendment.
Though the ordinance does not specifically state social media, the new legislation was broad enough to cover it. Vijayan had further earlier asserted that the new law did not target "traditional media" which largely functioned within the contours of the law. "Certain" online platforms have scant regard for the law and have "created an atmosphere of anarchy that could alter the social order, which cannot be allowed", Vijayan had said.
New law resurrection of scrapped laws
The new—now on hold—section suggested that any form of expression which threatens, abuses, humiliates or defames will attract a penalty. But the ordinance does not elaborate what forms of expression come under the ambit, nor does it expound on what constitutes as a threat, abuse, humiliation or defamation. The impugned section is vague and broad without any contours.
"Expression of the law must be clearly defined. Governments often fail to match their intent with legal expression, advocate Apar Gupta said. Gupta, Executive Director of advocacy group Internet Freedom Foundation (IFF), pointed out that the new law is essentially another version of the erstwhile Section 66A of the Information Technology Act, 2000 and Section 118D of the Kerala Police Act, 2011 which struck down by the Supreme Court in 2015.
There is very little to presume about the government intent since the new amendment was introduced in the absence of public process through an ordinance as opposed to a legal debate, Gupta added.
The new ordinance circumvents SC's Shreya Singhal verdict
In 2015, the Supreme Court in the Shreya Singhal verdict struck down Section 66A and Section 118(d) finding it unconstitutionally vague and violative of free speech.
Section 118(d) penalised anyone that "causes annoyance to any person in an indecent manner by statements or verbal or comments or telephone calls or calls of any type or by chasing or sending messages or mails by any means".
In its Shreya Singhal verdict, the top court held that Section 66A was "unconstitutional" and that "it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of overbreadth."
Reacting to the ordinance, advocate Shreya Singhal the there was "an important lesson to learn here". "We have to be vigilant because the government will find any way to do it (control free speech)," Singhal said speaking to BOOM. "This also shows us that as a society we are regressing," she added.
"Section 66A was introduced by the government of the day under the garb of protection from spam messages and emails. Eventually, the law was misused to clamp down on dissent and criticism. The governments are overly sensitive and are unable to take criticism from the very people that gave them power, Singhal said. "You can't be pandering, the law sought to be promulgated must be carefully thought out and not cater to the government who want to silence criticism, she added.
"The law was brought in as a knee-jerk reaction, without due consideration. It was also withdrawn after widespread outcry two days after it was issued proves that they (government) was also not convinced about it," she added.
