Will the new amendment to Kerala Police Act curb free speech?

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Today, the Kerala Governor Arif Mohammad Khan has signed the Kerala Police Act Amendment ordinance to prevent misuse of social media especially against women and children.

Since the Governor is empowered to promulgate an ordinance when the State Legislature is in recess under Article 213 of the Constitution of India, the Left Democratic Front Government had recommended the insertion of section 118 A in the Kerala Police Act, 2011, in October this year.

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, has factored in the increasing levels of social media hate to tarnish a person’s reputation as per The Economic Times.

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.”

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.

Impact of this new section

In Shreya Singhal, as already discussed, the court observed that the practice of police to arrest people on charges of posting objectionable content on the internet under section 66A of the IT Act infringed a person’s freedom of speech, hence rendered it unconstitutional. A similar reason on grounds of vagueness and overbreadth was used to invalidate section 118(d) of the Kerala Police Act.

With this new development in the Act, the Police gets sufficient power to mis(use) it under the garb of public tranquillity. The provision is left open ended for the State to decipher what content has the ability to defame, intimidate and insult a person. This law can further criminalise media reportage and cause a crack down on fair democratic practice.

Introducing legal provisions to tackle the escalating crime graph, cyber-crime, fake propaganda, should be strictly dealt with by the Government, but at the same time it should not have a chilling effect on free speech. A positive step towards constructing appropriate legislation dealing with online harassment would be to first define extensively the notions of intimidation, insult, etc and to give it some shape.

Increasing scrutiny by the executive branch to gather data on your social media activity, infringes the rules of privacy, and does not leave enough room for a healthy mechanism of regulation by intermediaries. A pragmatic framework will go a longer way in dealing with the such menacing content instead of the Police censoring speech.