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Left love for Online Freedom Speech!of

  • Kerala’s Section 118A is almost revival of dead Section 66A

Kerala Chief Minister Pinarayi Vijayan brought an Ordinance inserting a new crime in Kerala Police Act, which is almost same as Section 66 A of Information Technology Act that was held void ab initio, that nullified since its addition in 2007.

Though Pinarayi Vijayan announced that he would not implement the Ordinance: it remains as a bad law with enforceability. As per the Constitution Ordinance is as good as the law passed by legislature. If Kerala CM is sincere, he should withdraw the ordinance proclaimed by a gazette notification after it is duly signed by the Governor. As long as the Kerala’s Ordinance remains, there is a threat of incarceration for liking a post on facebook or forward of WhatsApp. If you share an opinion on facebook, like or love it, or forward in WhatsApp, you face a threat of ending up in prison for three years minimum and paying Rs 10,000 as penalty. If the Government, or those in power, feels that that there is a threat, insult, defamation, abuse, humiliation of a person or class of persons in any comment on social media platforms the ordinance would apply. What a democracy in highly educated state?

Like Section 66A, and Kerala’s earlier Section 118D, the Pinarayi’s law of Section 118A is equally draconian. See the three provisions with common criminality in violation of freedom of speech, for comparison:

Section 66A of Information Technology Act, 2000 struck down by Supreme Court in 2015:

“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 for the purpose of causing annoyance, inconvenience, danger, obstruction, insult shall be punishable with imprisonment for a term which may extend to three years and with fine.”

Section 118D,by Amendment to Kerala Police Act in 2011 struck down with S 66A of IT Act in 2015:

“Any person who causes annoyance to any person in an indecent manner by statements or verbal 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 for a term which may extend to three years or with fine not exceeding ten thousand rupees or with both”.

Section 118A of Kerala Police Act, inserted by 2020 Ordinance:

Punishment for making, expressing, publishing, or disseminating any matter, which is threatening, abusive, humiliating or defamatory: “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 for a term which may extend to three years or with fine which may extend to ten thousand rupees or with both.”

This draconian penal provision – Section 66A of Information Technology Act 2000 was brought by Union in 2007. This provision criminalized speech over internet, computers, or communication devices if such a communication was (a) “grossly offensive or menacing”; (b) where the author  knows the information “to be false and meant for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will” or “meant to deceive or mislead the recipient about the origin of such messages, etc, shall be punishable with imprisonment up to three years and with fine.” There is a similar anti-free speech provision 118D which also was struck down by SC along with S 66A.

Catch-all expressions used again

Section 118-A was inserted in the Kerala Police Act, by an ordinance almost a similar penal provision with ambiguous ‘catch-all’ expressions of social media expression crime. This means that a person can face three years in jail and a fine of Rs 10,000 for any social media post that is considered “offensive” or “defamatory”. Those who write, share the post, like or forward are threatened with this new penal law, which even Lord Macaulay did not dream of imposing on Indians during British slavery times. 

Expression ‘grossly offensive or menacing’, ‘annoyance, inconvenience, danger, obstruction, insultin 66A IT Act is found in Sec 118-A as ‘threatening, abusing”, ‘humiliating’. ‘Insult’ in 66A became ‘humiliating’ in 118-A. And in both sections the expressionknows to be false’is common. Kerala’s Section 118-A is more draconian as it also extends to ‘injury to mind, property or reputation. What does this mean?

Struck down by SC

The Supreme Court has struck down Section 66A Shreya Singhal’s PIL in 2015 (Shreya Singhal v. Union of India, (2015) 5 SCC 1.) saying that it was contrary to both Article 19 that guarantied Freedom of Speech and Expression and Article 21 that ensured Right to Life and Personal Liberty.  “Further, the judgment and final order in the Shreya Singhal case had rendered all investigations, prosecutions, and convictions based on Section 66-A IT Act illegal, and it forestalled any use of Section 66-A IT Act after the decision was rendered. Section 66A which was added in 2007, made posting of “offensive” comments online a crime punishable by three years of jail.

Describing liberty of thought and expression as “cardinal”, a bench of justice J Chelameswar and justice RF Nariman said, “The public’s right to know is directly affected by section 66A of the Information Technology Act.” The court was referring to ambiguity and wide open scope of the expressions used and said terms like “annoying”, “inconvenient” and “grossly offensive”, used in the provision, are vague as it is difficult for the law enforcement agency and the offender to know the ingredients of the offence. Therefore, the provision in its entirety was found to violate Articles 19(1)(a) and 21 of the Indian Constitution.

Legal Zombie

Authors of a study report by Internet Freedom Foundation coined a new expression “Legal Zombie” which means a mysterious post-death existence for a provision that was struck down. Their paper made a shocking revelation that about 65 to 70 cases cumulatively in different legal databases existed which shows abuse of the provision that is supposed to have been void ab initio i.e., from the date of its insertion in 2007 by amendment to IT Act. The public servants of three estates have committed an unconstitutional ‘criminality’ by harassing people who exercised constitutional right of free speech, for a crime which was not a crime. The Supreme Court was shocked at the way the struck down penal provision was being abused authorities still continue to book people under the now extinct and draconian provision when this was brought to its notice of Supreme Court by People’s Union for Civil Liberties in a PIL in 2019. The PUCL request was allowed on 15.2.2019. 

Pinarayi’s law

The Kerala Government found another route to bring back this black law against social media freedom, by rephrasing the provision 66A which was unconstitutional. It is unthinkable for a state Government to draft such an Ordinance, without having a legal expert opinion on such a crucial Constitutional and democratic right. This ordinance means the Pinaray Vijayan wants criticism on social media to be silenced and netizens be jailed. If the Right-wing governments at Centre and other parts wanted to abuse their authority to curb the voices against the wrongful policies of the establishments, it seems the Left wing also is not lagging in similar approach.

Advocate of Kerala, Anoop Kumaran, filed PIL before the Supreme Court in 2015 against earlier insertion of Section, 118(D) into the Kerala Police Act, 2011.  The Supreme Court struck down this Section 118(D) of the Kerala Police Act and declared it unconstitutional for violating the fundamental right of freedom of speech and expression, along with striking down Section 66A of IT Act. Kumaran told media that he would move the High Court against this 118A-inserting-ordinance also. Admittedly, the Kerala government has said that this new law has been brought in to ‘fill the gap’ left by the repealing of the two laws, which leaves current laws ‘inadequate’ to prevent crimes online which have ‘caused considerable distress to the women in our society’ and cyber-attacks that are ‘turning into a threat to privacy’.

The Kerala Government has put the Ordinance on hold after a severe backlash. Chief Minister Pinarayi Vijayan said on 23rd November that “the amendment to the Kerala Police Act “will not be implemented” for now. It is not enough. The Ordinance has to be nullified.

Prof. M. Sridhar Acharyulu
Prof. M. Sridhar Acharyulu
Author is Dean, Professor of law at Mahindra University at Hyderabad and former Central Information Commissioner. He published a number books in English and Telugu.


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