Kerala Police Act Amendment put on hold by Pinarayi Vijayan government; similarities to scrapped 66A, 118(d) exist

The Kerala Police Act Amendment ordinance, envisaged by Chief Minister Pinarayi Vijayan-led Left government to prevent cyberattacks against women and children, was withdrawn a day after being signed by Governor Arif Mohammed Khan as the chorus of criticism gained momentum.

The state cabinet, last month, had decided to give more teeth to the Police Act by recommending the addition of Section 118A, which allows police personnel to "suo motu register a case against the accused and arrest him". The law also stipulates either imprisonment for up to five 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.

Vijayan said on Sunday that the law would not be used against free speech or journalism but would equip the police in the face of a “rising crime graph, fake propaganda and hate speech on social media since the outbreak of COVID-19”. Following a political storm, Vijayan announced that his government was not intending to implement the ordinance.

Opposition up in arms against ordinance

Kerala BJP chief K Surendaran called the law "a tool of repression" while Congress leader Shashi Tharoor said, "This law can and will be challenged in the courts, because any political attack on social media against a party or "class of persons" (eg 'sanghis' or 'libtards') could attract its provisions. It must be revised to narrow its application to flagrant cases of abuse and threats only." Leader of Opposition in the Assembly Ramesh Chennithala accused the government of “trying to silence those who criticise them”.

Apart from the Opposition's criticism that the law curbs freedom of speech and journalism, it also seems to provide powers to the police to take of defamation when the Supreme Court has made it clear that it could not do so, according to a Scroll report.

In the 2015 Shreya Singhal vs Union of India judgment, the apex court had made it clear the police cannot act on its own over defamation and there has to be a complaint in court from a private person for initiation of criminal defamation proceedings. Section 118A, however, qualifies defamatory consent as a cognisable offence.

According to 66A of the IT Act, “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.”

Section 118 (d) of the Kerala law provided for imprisonment, extending upto three years, of any person convicted for causing “annoyance” to any person “in an indecent manner” by “statements or verbal comments or telephone calls or call of any type or by chasing or sending messages or mail by any means”.

The Kerala Police Act Amendment, however, has been criticised for its vague ambit. It applies not just to those writing a post, but also those share that post or opinion, leaving it open for misuse by individuals, government and the police against those whom they disagree with.

Additionally, according to a report in The NewsMinute, though the Kerala government claims it is to fight cyber crimes against women, the aspect has not found any mention in the law either. “Section 66A was limited to communications online but 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,” the report quoted Anivar Aravind, a public interest technologist.

Moreover, just like 66A, Section 118A too will be a cognisable offence, giving the police power to arrest a person without a warrant and start an investigation.

While striking down 118(d), the Supreme Court had observed in 2015 that "Information that may be grossly offensive or which causes annoyance or inconvenience are undefined terms which take into the net a very large amount of protected and innocent speech.” On similar lines, Section 118(A) seeks to punish people for “any matter or subject for threatening, abusing, humiliating or defaming a person or class of persons” – of which only defamation is clearly defined in the legal framework.

Existing laws to protect against cyber intimidation

The LDF government's claim of passing the law to protect women and children from cyberbullying or abuse falls flat as existing laws too provide for the same. While Section 67 of the Information Technology Act provides for the punishment for publishing or transmitting obscene material in electronic form, Section 119(b) of the Kerala Police Act defines the ambit and punitive actions for taking photographs or recording videos or propagating them at any place in a manner affecting the reasonable privacy of women.

Section 506 of the Indian Penal Code provides for a punishment of two years for criminal intimidation, while Section 500 mandates the same period of jail term for criminal defamation. The IPC's Section 509's ambit covers a "word, gesture or act intended to insult the modesty of a woman".

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