“The LDF Govt in Kerala will certainly consider all creative opinions and suggestions that are being aired with regard to this amendment”, the CPI(M) leadership made a public statement after the uproar over the Kerala Police Act Amendment, Section 118A continued over the weekend.
The LDF Govt in Kerala will certainly consider all creative opinions and suggestions that are being aired with regard to this amendment.#KeralaPoliceActAmendment #118A
— CPI (M) (@cpimspeak) November 22, 2020
Soon, the Kerala Chief Minister Pinarayi Vijayan also clarified that the state government has decided not to implement the controversial Police Act amendment, and will have a detailed discussion in the Assembly and collect feedback from various sections reported the Indian Express.
Chief Minister Pinarayi Vijayan spoke out on Monday to clarify the state government’s stand after a decision was taken at the CPM Secretariat meeting attended by Pinarayi Vijayan stated the news report. On Monday morning, CPM general secretary Sitaram Yechury had said the party would review the amendment.
In a statement issued here after the secretariat meet, the CM said the government decided to bring in the ordinance in view of widespread abuse of social media and that various sections of society including women and transgenders are being attacked through social media with defamatory and obscene campaigns. However, after the amendment was brought in, people from different walks of life, including those who support the Left front and those who stand up for democratic values, expressed concern. https://twitter.com/PTI_News/
The government has noted this and decided not to implement the amendment. However, the CM added that people should be cautious about hate campaigns online. Kerala Governor Arif Mohammad Khan had signed the ordinance Saturday, and soon a surge of criticism followed. ON Sunday the CM said that the new legislation won’t be used to curtail freedom of speech or against impartial media, stated news reports. By Monday opposition leaders had filed writ petitions in the Kerala High Court challenging the constitutional validity of Section 118A inserted in the Kerala Police Act, 2011 by way of an ordinance, reported Live Law.
“Mr.Vijayan is behaving like a man drunk on power and proving himself to be unworthy of holding office,” said Kerala BJP state president K Surendran.
The Smugglers Own CM @vijayanpinarayi is trying to silence the voice of the opposition and media through the draconian Kerala Police Amendment Ordinance. Mr.Vijayan is behaving like a man drunk on power and proving himself to be unworthy of holding office. #118A #Kerala
— K Surendran (@surendranbjp) November 22, 2020
Shibu Baby, John Former Minister, Govt of Kerala. Central Secretariat Member, RSP. quoted dictator Idi Amin: “There is freedom of speech, but I cannot guarantee freedom after speech.” – #118A #Kerala
“There is freedom of speech, but I cannot guarantee freedom after speech.” – Idi Amin #118A #Kerala pic.twitter.com/hIA94mkY4k
— Shibu Baby John (@shibu_babyjohn) November 22, 2020
The first petition was filed by MP and former Minister NK Premachandran, former Minister and RSP Leaders Shibu Baby John and AA Azeez. Another petition was moved by Kerala state BJP President K Surendran and the third plea was moved by a Delhi based Advocate, Jojo Jose. The writ petitions in the nature of PIL filed before the Kerala High Court challenged the constitutional validity of Section 118A inserted in the Kerala Police Act, 2011 by way of an ordinance. “Section 118A is an attempt to resurrect the same approach to regulation of free speech that had been declared to be unconstitutional by the Hon’ble Supreme Court in Shreya Singhal. 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,” Live Law quoted a plea.
The Petitioners, reported Live Law have broadly contended that the Ordinance is an attempt to circumvent the Shreya Singhal judgment, whereby the Supreme Court had held that Section 118(d) of Kerala Police Act, violated right to free speech under Article 19(1)(a) of the Constitution of India. As per Section 118(d), any person who 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; shall, on conviction be punishable with imprisonment for a term which may extend to three years or with fine not exceeding ten thousand rupees or with both.
The newly inserted provision Section 118A stipulates: 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.
Will the new amendment to Kerala Police Act curb free speech?
SabrangIndia had published a detailed legal analysis on November 21 when the Kerala Governor Arif Mohammad Khan had signed the Kerala Police Act Amendment ordinance to prevent misuse of social media especially against women and children. The Left Democratic Front Government had recommended the insertion of section 118 A in the Kerala Police Act, 2011, in October 2020.
Section 118A provides 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.
The opposition in Kerala have asserted that giving such kind of unchecked authority to the Police will curb freedom of speech. However, Chief Minister Pinarayi Vijayan, rejecting such assertions, factored in the increasing levels of social media hate to tarnish a person’s reputation.
The Background
In September, 2020, Vijay P. Nair a YouTuber was assaulted by three women for his disparaging video on a YouTube channel abusing feminists and reputed women in the State including famous dubbing artist Bhagyalakshmi and veteran poet, activist Sugathakumari. Triggering widespread condemnation, the Kerala Chief Minister stood by the women against such defamatory comments. The Week reported the CM saying, “the government views the actions, breaching the bounds of decency and humanity, in insulting women very seriously. Strict action will be taken against those who misuse the social media facilities to abuse women. If the existing laws are not sufficient for it, appropriate legislation will be considered. The state stands by the women who became the victims of abuse.”
What is the Shreya Singhal judgement?
The Supreme Court’s observation in Shreya Singhal v Union of India (2015) 5 SCC 1, is pertinent to comprehend the implication of this new section 118 A in the Police Act. The court had struck down section 118(d) of the Kerala Police Act and section 66A of the Information Technology Act.
Section 118(d) provides that causing 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 emails by any means shall be punishable with imprisonment for a term which may extend to three years or with fine not exceeding ten thousand rupees or with both.
Section 66A of the IT Act, very similar to section 118(d), penalises people sending offensive or menacing messages through communication. The court had struck down both sections and held that the language of section 118(d) was vague and violative of section 19 (1) (a) of the Constitution entailing freedom of speech and expression.
Here are some instances in which citizens, especially media persons were punished over social media posts:
November 2020: Andhra Pradesh: CBI books 16 people for defamatory content against judges
The Central Bureau of Investigation (CBI) booked 16 regional political party YSR Congress Party leaders for allegedly defaming the Indian Judiciary specifically targeting the judges of the Andhra Pradesh High Court and the Supreme Court on social media, as reported by LiveLaw. The accused persons were booked for promoting enmity between different groups, intentionally insulting people, criminal intimidation and public mischief under relevant sections of the Indian Penal Code. In addition to this, they were also charged for transmitting/publishing obscene material in electric form under the Information Technology Act. A couple of cases were registered at the State Crime Inspection Department (CID) on the direction of the Andhra Pradesh High Court. The cases were taken over by the CBI. Displeased at the job done by State CID, Justices Rakesh Kumar and J. Uma Devi of the Andhra Pradesh High Court directed the CBI to probe into the alleged derogatory comments made by ruling YSR Congress leaders on social media against the Judiciary as an entity. It also directed the CBI to submit a report to it in a sealed cover within eight weeks, wondering whether there was a “larger conspiracy” behind the social media posts.
November 2020 Stand up comic Kunal Kamra faces contempt charges for tweets
Attorney General, KK Venugopal gave his nod for proceeding against stand-up comedian Kunal Kamra on charges of contempt for posting comments against the Supreme Court and its judges on Twitter. Kamra has been known to speak up against the socio-political scene through his social media handles and this time he has been found in trouble for it. Undeterred, Kamra, as if he expected such action, kept posting tweets from his Twitter handle about the contempt action against him. Kamra tweets were a comment on the Supreme Court’s observations made in the order granting interim bail to Republic TV’s Arnab Goswami. The AG, in his reply to the letters seeking consent for initiating contempt against Kamra, stated, “I find that today people believe that they can boldly and brazenly condemn the Supreme Court of India and its judges by exercising what they believe is their freedom of speech. But under the Constitution, the freedom of speech is subject to the law of contempt and I believe that it is time that people understand that attacking the Supreme Court of India unjustifiedly and brazenly will attract punishment under the Contempt of Courts Act, 1972”. Meanwhile, Kunal Kamra refused to apologise for his tweets about SC.
November 2020 No social media for 2 years: Allahabad HC’s bail condition for man accused of making an objectionable post against Uttar Pradesh Chief Minister Adityanath and other Government representatives. He was granted bail by the Allahabad High Court on November 2, 2020. (Akhilanand Rao v. State of Uttar Pradesh (Crl. Misc. Bail App. No. 36733 of 2020). One of the conditions on which the applicant was granted bail was that the, “Applicant will not use social media for a period of two years or till the conclusion of trial before the Trial Court, whichever is earlier.” The applicant Akhilanand was booked for cheating by personation through communication devices or computers and criminal conspiracy under the relevant sections of the Indian Penal Code and Information Technology Act. An FIR against him was lodged at Police Station Kotwali, District- Deoria for indulging in objectionable remarks against the Chief Minister of the state and other public representatives. It was also alleged that he had falsely shown his status and tried to obtain undue advantages. He had been in jail since May 12, 2020.
September 2020 Journalist Aakar Patel arrested, then bailed for three tweets on Modi, BJP-RSS & Ghanchi Caste. Aakar Patel, a well known columnist and former executive director of Amnesty International India, discoled on Twitter that he was arrested and then let out on bail earlier this week for allegedly posting “offensive” tweets against the Ghanchi community in Gujarat. It was the Surat City police registered an FIR against Patel, filed by Purnesh Modi, a ruling Bharatiya Janata Party MLA from Surat West constituency and president of the Samast Gujarati Modhvanik Samaj. Patel said the state has become intolerant of dissent. He was asked to hand over the devices used to post the tweets in question. The criminal complaint-FIR- registered on July 7 states that on June 24 and June 27, Patel had posted three tweets that were objectionable and against the community. Patel has been booked under Sections 153 A, 295 A, 505 (1) B, 505 (1) C, 499 and 500 of the Indian Penal Code. Most of these sections are non-bailable. The complainant has listed three tweets posted by Patel. In the first two tweets, Patel mentioned that Prime Minister Narendra Modi belonged to the Ghanchi caste, which was added to the Other Backward Caste list in 1999 by then Prime Minister Atal Bihari Vajpayee’s regime. Patel goes on to say that the community is “well-off” and is “meat-eating” and that Modi has taken on the manner of the Rashtriya Swayamsevak Sangh (RSS) and has turned vegetarian. In another tweet that followed, Patel has alleged that those involved in the 2002 Sabarmati train carnage belonged to the Muslim Ganchi community. On June 27, in this third tweet, Patel wrote, “The RSS and BJP always profit by the violence against other Indians, especially Muslims. Vajpayee more than Upadhyaya, Advani more than Vajpayee and Modi more than Advani benefitted from this. We have to stop this cycle of violence and blood profit by the RSS and BJP.”
August 2020: Advocate Prashant Bhushan fined Re.1 by the Supreme Court for ‘committing contempt’ The Supreme court of India imposed a Re 1 fine on advocate Prashant Bhushan who it had held guilty for ‘committing contempt’ and stated that if he does not pay Re 1 by September 15th, he will have to undergo 3 month imprisonment and be debarred from practice for 3 years. The Supreme Court held the eminent advocate and human rights defender Prashant Bhushan guilty of criminal contempt in the suo moto case registered against him for two tweets posted by him about the Supreme Court and the current Chief Justice of India. The judgement put forth the submission made by Bhushan in his affidavit in response defending his two tweets, which may be read here. The case had made global headlines. The Bar Council of Delhi later sent a show cause notice to senior advocate Prashant Bhushan asking him to appear before it, and show cause why action should not be taken against him over his tweets, that allegedly resulted in ‘contempt of court’.
August 2020: Delhi-based Journalist Prashant Kanojia was arrested by UP police for “some tweets”
Uttar Pradesh Police again arrested Delhi-based journalist Prashant Kanojia, for the second time this year, allegedly over his social media posts. He was arrested on Tuesday, August 18, from his south Delhi residence and taken to the local police station. Kanojia was arrested “in connection with some tweets” by UP police. In April this year, Kanojia was booked for allegedly making some ‘objectionable remarks’ against the Prime Minister, and Uttar Pradesh Chief Minister. In 2019, he was arrested by the Lucknow police for allegedly making objectionable posts against CM Adityanath. He finally walked out of jail on November 6, 2020 , 15 days after the Allahabad High court granted him bail. The journalist was originally granted bail on October 22 after two months of arrest for allegedly morphing and tweeting a photograph of the Ayodhya Ram temple originally posted by a Hindu Army member Sushil Tiwari. Sub-inspector Dinesh Kumar Shukla, who lodged a complaint against the journalist, wrote that Kanojia posted the picture on August 17 to “malign Tiwari’s image” and ensue discord among various communities. Accordingly, he was arrested by Lucknow’s Hazratganj police on August 18 for various charges under the Indian Penal Code (IPC) and the Information Technology Act. Kanojia rejected the allegations and claimed he was implicated for ulterior reasons.
Throughout the drawn-out battle with the administration, Konajia’s wife and former journalist Jagisha Arora played a pivotal role breathing life into the movement for his release. She recounted how the police had told her “Tweet ka maamla hai. Bohot tweet kiye hain tumney, upar sey orders aaye hain humein, follow toh karna padega.”
July 2020: Journalist Patricia Mukhim, hounded over social media comment
In a Facebook post on July 4, she had called out the Lawsohtun village council for failing to identify the “murderous elements”, when masked people attacked five boys at a basketball court in the village. No one was arrested in the case. Mukhim had sought that Meghalaya Chief Minister Conrad Sangma and the Dorbar Shnong, the traditional local body, take action against the accused. However, the village council in Meghalaya filed a complaint against Mukhim accusing her of trying to rake up sentiments, she was also accused of defamation. Soon the local police filed a criminal case against Mukhim. She approached the Meghalaya High Court to cancel the case but was reportedly turned down on November 10 when the HC refused to quash the FIR filed against her. According to The Telegraph, the court observed that the post “apparently seeks to promote disharmony or feelings of enmity, hatred or ill-will between two communities”. Patricia Mukhim, a veteran journalist from Shillong, resigned from the Editors Guild of India (EGI) citing its lack of support. The EGI has now issued a statement and spoken up for the vertan journalist. Mukhim defended her post, stating that she only raised the issue of “continued” attacks on non-tribal persons in her post. According to news reports Mukhim has now decided to challenge the HC order in the Supreme Court.
September 2020: Kashmir journalist assaulted, harassed by Cyber Police, for article on cyberbullying
Auqib Javeed, a Srinagar-based Kashmiri journalist had recently written an article on cyber bullying, or the alleged intimidation of social media users who posted anything seen as being critical of the government. Javeed, an independent journalist who has written for major publications, said he fears for his life following assault and harassment, allegedly by Kashmir’s cyber police. The report on cyberbullying he had filed was published by news and analysis portal Article 14, and had stated that “dozens of Twitter accounts in Kashmir are silent after users were interrogated by the police about posts on Article 370, the Internet ban and an alleged extra-judicial killing. Police say these users were accused of ‘cyberbullying’. Those summoned were allowed to go—after promising not to criticise the government.” Javeed himself was summoned by the Cyber Wing of the Jammu and Kashmir Police on September 18.
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Will the new amendment to Kerala Police Act curb free speech?
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YouTuber assault case: Kerala HC grants pre arrest bail to three women