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Kerala Police Act Amendment and Free Speech (23 November 2020)

Kerala Police Act Amendment and Free Speech (23 November 2020)

Why in News:

The government of Kerala has put on hold the implementation of the Kerala Police Act Amendment after facing massive backlash over the same.

Context:

Chief Minister Pinarayi Vijayan on Monday said that due to concerns raised by the supporters of the Left Democratic Front, the law will not be amended. The Kerala Government had decided to amend the Kerala Police Act in an effort to check the widespread malicious campaigns through social media and otherwise, which pose a threat to individual freedom and dignity, which are constitutionally ensured to citizens. Criticisms and complaints against defamatory, untrue and obscene campaigns have come up from various quarters of the society. Strong protests have emerged from the society on account of the merciless attacks on various sections including women and transgenders. The amendment evoked varied responses from several corners. 

Background:

Recently, Kerala Government has introduced Section 118A in the Kerala Police Act, to penalise ‘offensive,’ ‘abusive,’ and ‘threatening’ social media posts.

The proposal for this ordinance came up over a month ago, but was only finalised last week, and received assent from Kerala governor Arif Mohammed Khan on 21 November.

The ordinance amends the Kerala Police Act (a state-level criminal law), adding a new Section 118A. This provision punished any kind of “communication” – including statements, articles, social media posts, etc – which threatens abuses, humiliates or defames a person or class of persons.

Summary of the Debate

Kerala Police Act and Proposed Amendment:

  • Section 118A: A person can face three years in jail and a fine of Rs 10,000 for any social media post which 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.
  • Those who share that post or opinion will also face the same kind of punishment.
  • The proposed amendment makes it a cognizable offence and any person can file a complaint or a police officer can register a case suo motu against the accused.

Kerala Police Act amendment could end up gagging the media |  Thiruvananthapuram News - Times of India

Necessity of this Act:

  • To curb cyber attacks that is posing a major threat to private life.
  • Government has said that the existing laws were not effective to deal with cyber crime.
  • To contain the cyber-bullying of women and children.
  • There have been instances in which even the integrity of families has been affected, resulting in suicides.
  • The need for legally tackling this was raised even by the heads of media houses.
  • In May this year, High Court had directed the state chief secretary to initiate effective steps to curtail hate speech and bullying on social media.

Criticism of the Act:

  • Law can be misused by government and the police or even the individuals, who may use it against those whom they simply disagree with.
  • It gives power to the police to file suo-motu cases against anyone.
  • It is being seen as an attempt to suppress the freedom of speech and expression.
  • It has resurrected the “same legal vices” the Supreme Court had “trashed” by scrapping Section 66 A of the IT Act.
  • Kerala government claims it is to fight cyber crimes against women, but that has not found any mention in the law.
  • It restricts Article 19 of the Constitution in an active way and is not protected by Article 19(2).

Conclusion:

  • Though the Kerala government has said the ordinance won’t be implemented, it has not yet officially withdrawn the amendment, which would require a gazette notification. Until the ordinance is withdrawn, it can still technically be used to file FIRs against people accused of violating the provisions of Section 118A of the Kerala Police Act.

Important points made by the Guests

J. Sai Deepak, Advocate, Supreme Court  

  • The stated necessity seems to be that the government was interested according to them and protecting the women and transgender perhaps a few incidence may have triggered this particular necessity or maybe they felt there was constituency to be catered to even it may the way the judgement the state government has relied upon
  • Judgement which has triggered this particular amendment clearly in fact said in that very judgement itself the Kerala High Court said that existing laws which deal with definition and other offences are sufficient to address these kind of issues.
  • Therefore, there is no need for separate legislations so as to speak addresses questions of let say defamation or violation of modesty of women so that’s one thing that perhaps we may want to ask castle as what in particularly may have triggered it.
  • Perhaps the one justification could be that while the law recognizes vulnerability or the need for protection of women separately when it comes to dignity assurance so far maybe in light of the kind of behaviour sometimes that transgender and non binary genders are exposed to maybe they need to be protected.

Renjith Marar, Advocate, Supreme Court    

  • Section 118D of the Kerala Police Act was under challenge, when section 66A of the Information technology Act was also challenged before the Supreme Court.
  • When 66A was wiped out as unconstitutional, Section 118D was also struck down as unconstitutional.
  • As far as Section 118A is concerned, Kerala had seen a number of developments in the last pandemic time.
  • Kerala Police Act has so many provisions including Section 120 also deals with kind of offences like maliciously blaming somebody or giving false information, etc.
  • Unfortunately, just prior to the pandemic, they brought in an amendment making all these offences compoundable and the offences have been made compoundable without the victim assent.

Satya Prakash, Legal Editor, The Tribune

  • This was subsequent to the demand of certain groups including the government is also facing huge dislike from the community and there are a numerous online magazines, YouTube platforms etc attracting the government these days probably, the government could have thought that there needs to be kind of restrictions on these kind of online media which do not have any other checks as far as reputation and responsibility is concerned therefore probably this is the reason.
  • Once you go through there has been uproar against 190A but once you go through the provision one would find that 118A is not as malicious or as poisonous as section 66A which was in existence at that point of time in the technology act.
  • This is kind of provision like the defamation under the Indian Penal Code.
  • In Subramaniyam swamy’s case, the supreme court itself held section 499 and section 500 is not unconstitutional.

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