Section 118A of KPA Explained
Our country has its Constitution which gives its citizens fundamental rights, the right to vote irrespective of their caste, creed, religion, race or gender. No matter what kind of democracy a country works on, be it presidential or parliamentary, the power is in the hands of the people. And the Press is the voice of people, it is considered to be the voice of the voiceless. The Press existed even before independence and it certainly proves that any sort of media or press is by the people of the state not by the ruling body.
The media acts as a bridge between the government and the people as it tends to inform people about the functions performed by the government. It also informs the government officials about the problems faced by people in their respective constituency. Because the freedom of the press means freedom from interference from the authority which would have the effect of interference with content and circulation of newspapers. But under freedom of expression, it is inferred that the press, not only newspapers but all sorts of media have the right to inform and educate people.
A few weeks back, Kerala Governor Arif Mohammad Khan approved an ordinance promulgated by the LDF government in the state for punishing the “making, expressing, publishing or disseminating” of any “matters” which could be constructed “threatening, abusive, humiliating or defamatory”. In 2015, the Supreme Court in a landmark judgment on Section 66A of the IT Act had also struck down a similar provision of the Kerala Police Act for being violative of the right to freedom of speech and expression and for its vagueness.
The Section 118 (d) of the Kerala law provided for imprisonment, extending up to 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”. In the Shreya Singhal case ruling, the apex court had said what it has said about Section 66A would directly apply to the provision “as causing annoyance in an indecent manner suffers from the same type of vagueness and overbreadth…”
Section 66A criminalized sending of any communication, via computer or a communication device, which could be said to be “grossly offensive, has menacing character” or false information intended at “causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or will” or any electronic mail or email messages intended at “causing annoyance or inconvenience or to deceive or to mislead” the recipient.
Section 118A, which was added to Kerala Police Act as part of the amendment cleared by the Governor on Saturday, provides for a similar punishment on conviction as that of the Section 66A and the Section 118(d) but is not restricted to communication made through a computer resource or a communication device, as it explicitly states “through any kind of mode of communication”, and also is not restricted to annoying someone, like Section 118 (d). It says “whoever makes, expresses, publishes or disseminates … 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 be punished with imprisonment extending upto three years or with fine extending to Rs 10,000 or with both.
Section 118A of the Kerala Police Act makes the defamatory content and the other acts defined under it a cognizable and bailable offence; a police officer has the power to arrest a person only if his arrest is necessary to prevent or not to continue the offence, when it is manifestly evident that locating such person subsequently is not possible, such person is likely to hurt himself or any other person or there is “special and emergent circumstances” warranting the arrest”.
The Constitution guarantees the freedom to profess, propagate, and practice religion, and allows all religious sections to manage their own affairs in matters of religion; subject to public order, morality, and health. To date, there have been no central legislations restricting or regulating religious conversions. The issue of freedom of speech is so well settled and well known, through a catena of Supreme Court judgments since 1950, that it would be redundant to discuss it here.
In many ways, the new legal section in Kerala is acutely reminiscent of the notorious Section 66A of the Information Technology Act, 2000, which was struck down by the Supreme Court in the case of Shreya Singhal (2015) as ultra vires the Constitution. Interestingly, most people seem to have forgotten that in the same judgment, the Supreme Court had struck down Section 118(d) of the Kerala Police Act also as unconstitutional.
Section 118(d) read:
“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 emails 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 Supreme Court held,
“What has been said about Section 66A would apply directly to Section 118(d) of the Kerala Police Act, as causing annoyance in an indecent manner suffers from the same type of vagueness and overbreadth, that led to the invalidity of Section 66A, and for the reasons given for striking down Section 66A, Section 118(d) also violates Article 19(1)(a) and not being a reasonable restriction on the said right and not being saved under any of the subject matters contained in Article 19(2) is hereby declared to be unconstitutional.”
It can be easily seen that the new Section 118A tries to introduce the unconstitutional Section 118(d) of the Kerala Police Act or Section 66A of the Information Technology Act on the sly, through the backdoor, with a little window dressing.
The outlawed sections spoke of vague notions like ‘annoyance’ and ‘inconvenience’, which are not defined in law anywhere. The new Section 118(A) speaks of an equally vague concept, ‘humiliating’, which is also not defined in law anywhere.
In the Shreya Singhal judgment, the Supreme Court had quoted with approval a historic judgment of the US Supreme Court in the case of Grayned v. City of Rockford, “A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application… Uncertain meanings inevitably lead citizens to ‘steer far wider of the unlawful zone’…than if the boundaries of the forbidden areas were clearly marked.”
The amendment to the Kerala Police Act is thus an unholy attempt to hoodwink the Supreme Court. For the reasons enunciated at length in Shreya Singhal, this is also likely to be struck down by the Supreme Court.
It needs no explanation that the Ordinance has the potential for great abuse against lay people and the media alike. It gives enormous, unbridled powers to the police. Anybody could be accused of humiliating someone and prosecuted. Further, since the new law would enable the police to take action suo motu, it obviously increases the possibility of abuse.
Moreover, since cyber space does not have jurisdictional limits, it means that an online spat with a Malayali living anywhere in the world could theoretically result in a case being registered in his hometown in Kerala, on the ground that he had been ‘humiliated in the eyes of his friends out there’. If the accused happens to be living in another corner of the country, his plight can be easily imagined.
Not only does the section defy the Shreya Singhal judgment, it is actually redundant. Even if it is argued that it is intended to protect women and children from bullying or abuse in cyberspace, there is no evidence that the objective could not be achieved by existing laws. They include Section 67 IT Act (punishment for publishing or transmitting obscene material in electronic form); Section 506 IPC (punishment for criminal intimidation); Section 509 IPC (word, gesture or act intended to insult the modesty of a woman); Section 500 IPC (punishment for defamation); or Section 119(b) Kerala Police Act (taking photographs or recording videos or propagating them at any place in a manner affecting the reasonable privacy of women).
There is no study duly backed by data, which could support a presumption regarding inadequacy of existing laws. Moreover, if existing laws have been found toothless, they should have pointed it out at appropriate forums like the annual DGPs and IGPs conference, which is usually attended by both the prime minister and the home minister, or in official communications. This was never done.
It is not possible to conjecture as to what exactly might have precipitated this move. However, it is known that of late, the media has been critical of the Left Democratic Front government and the chief minister has also accused a section of the media of taking part in a political conspiracy against the government. Then in September, there was an incident involving one dubbing artist Bhagyalakshmi and two other women activists who assaulted a YouTuber Vijay Nair allegedly for making derogatory and sleazy remarks against women on his YouTube channel. They said that they did so because the police had not taken any action. In any case, they could get anticipatory bail from the high court only.
To know more about the incident, check out this link:
A section of the people feels that, in view of these incidents and the like, public sentiment was somewhat against critical remarks being made on social media. Public sentiments are, however, transient. Laws riding the wave of public sentiments, or sugar coated to pamper to public sentiments, are often abused to suppress that very public.
It appears that the cabinet had been misled into recommending this amendment, without its implications and ramifications having been properly explained to them.
They would be well advised to withdraw the amended law immediately, and admit that it was a terrible, albeit inadvertent, mistake. If the law were to be scrapped as ultra vires the constitution by the Supreme Court, the communists would lose a great deal of political capital.
During the Constituent Assembly debates, Somnath Lahiri, the only communist member in the Constituent Assembly, had famously stated, “I am constrained to say that these are fundamental rights from a police constable’s point of view and not from the point of view of a free and fighting nation. Here whatever right is given is taken away by a proviso.”
From Lahiri’s lofty, vigorous words to this draconian law, it is a terrible downfall. This is nothing but a regressive move by a progressive party, that took pride in being called the conscience keeper of political morality in the country.
Ironically, CPI(M) leader P. Rajeev had made a spirited speech in the Rajya Sabha against Section 66A of the IT Act, and the election manifesto of the CPI(M) during the 2019 general elections had demanded that Centre repeal defamation from the IPC.
The greatest danger of such legislation is that if the Ordinance is not withdrawn by the Kerala government, it will act as an example to other states to frame similar laws of their own. Many of them have an inglorious record of harassing the media.
If we the people fail to assail this law, we will lose the moral right to criticize any such misadventure by the Right (or for that matter anybody) in the future and freedom of speech will be seriously imperiled.
Disclaimer: We are a platform which allows all views to be represented without bias or discrimination. This piece is not to be judged upon as the final stance of MUNner’s daily or MEC MUN Society.
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