Kerala Amendment: Restrictions on Free Speech Should Be Couched in the Narrowest of Terms

Pinarayi Vijayan Government in Kerala stirred up quite a controversy this Saturday. It decided to amend the Kerala Police Act and bring in what many are calling draconian measures to deal with abusive content online. However, the Chief Minister on Monday said that the controversial ordinance announced by his administration a few days ago to ‘deal with offences perpetrated through social media’ (according to officials) would not be executed in the state, following sharp criticism of the movement. He added that his government would not be implementing the Act immediately and will have a debate in the State Assembly first. In other news, two petitions have already gone to the Kerala High Court filed by UDF and the BJP.

“With the announcement of the amendment, different views arose from different quarters. Concerns were expressed by those who supported LDF and those who stood for the protection of democracy. In this situation, it’s not intended to amend the law” said Pinarayi Vijayan to ANI. The move comes after the leader faced opposition by his own party members who claimed that amendments like these reflect the Bharatiya Janata Party;  a party that never leaves a chance to stifle free speech.

The ordinance brings in a new amendment within the Kerala Police Act; section 118A that has three parts. The first part broadly criminalises any information or communication or publication that may be threatening, abusive, humiliating or defamatory. The next part says that the person who is making any such communication on any platform, including social media, should have known it to be false. The third part dictates that such communication should cause injury to the mind, body or property of any person. These three things satisfied could lead to imprisonment up to three years maximum, along with a fine of ₹10,000.

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The I.T. Act of 2005 had a similar provision named section 66A that everybody is talking about now. Section 66A said that "Any person who sends by any means of a computer resource any information that is grossly offensive or has a menacing character; or any information which he knows to be false, but to cause annoyance, inconvenience, danger, obstruction, insult shall be punishable with imprisonment for a term which may extend to three years and with fine.”

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The Supreme Court struck down the provision in 2015 in Shreya Singhal case on two substantial grounds. Firstly, Article 19 (1) guarantees freedom of speech and expression, although Article 19 (2) has some reasonable restrictions which include morality, public decency, defamation, incitement to abetment to an offence, contempt of court, security of the state. What the court said back then was that the sort of restrictions that section 66A would put do not fall into any of the eight restrictions. The second and the larger issue was that the words scribed in section 66A, were vague, and could encompass any sorts of public opinion that anybody puts out, as any opinion can be offensive to some other person. Opinions are something very subjective, and a provision that vague would have been more prone to abuse.

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The significant criticism that ensues post introduction of such provision is the use of words that have broad interpretations. A person never knows what sort of offence they are committing as they are unaware and unsure if a particular post can land them in jail. Furthermore, there is a procedural aspect to this, too. Section 118A is a cognizable offence which means that if the police get to know of any committed felony, they can register a case suo-moto on their own accord and can also arrest the suspect(s) without a warrant. That particularly becomes a concern as it gives wide-ranging powers to the police machinery to act on any words close to humiliating, threatening, and abusive in nature. The provision includes restrictions pertaining to defamatory content too, which gets covered under the I.P.C. However, there are procedural safeguards already enshrined in the C.R.P.C. that talks about defamation and measures to stifle it and guides as to how a person agreed should be able to file a complaint of defamation. But when new provisions like this get introduced, what happens to those safeguards?

A senior judge said in an editorial that such provisions could be helpful in curbing hate news, but it being a cognisable offence makes it hard to swallow even to the likes of him. Many have viewed it as a weapon against fake news, but the procedural irregularities raises worries; outweighing the benefits.

Ironically the right-wing went a step ahead, accusing the CPI (M) of stifling freedom of speech and expression in Kerala; further portraying the left as an evil and rising threat for the nation. Any political party in India at this point can not stand up and speak about freedom of expression and speech, but more importantly, what needs to be addressed here is the connotations of left politics in the country. Contrary to popular belief, the conventional electoral active left in India has never been known for being too democratic.  Whether it is about intra-party or outside functioning; the kind of rule that was in West Bengal for over three decades spoke for itself. Politics of violence in former Bengal and present-day Kerala tells us that there is a thin line between the right and the left when it comes to allowing complete freedom to practice democratic values.

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