Kerala is about to witness a new trend, which ultimately aims at silently, piece by piece, removing our fundamental rights and freedoms. The current flow is inching towards a situation where an individual’s legal safeguards are suspended while discharging the state’s power upon them simultaneously. This is already happening in India, under Prime Minister Narendra Modi, and in various states.
On Saturday, Kerala Governor Arif Mohammad Khan signed The Kerala Police (Amendment) Ordinance, 2020. With the addition of Section 118A in subsection (1) of Section 125 of the principal Act, the Kerala Police have been empowered to prosecute and jail individuals “for making, expressing, publishing or disseminating any matter which is threatening, abusive, humiliating or defamatory through any mode of communication.”
Following massive criticism, the Pinarayi Vijayan government was forced to put the controversial move on hold. He said today that the amended Kerala Police Act “will not be implemented.” The Chief Minister added, “Detailed discussions will be held in the Assembly, and further steps will be taken in this regard after hearing the views of all parties.”
The on-hold new section reads:
“Punishment for making, expressing, publishing or disseminating any matter which is threatening, abusive, humiliating or defamatory — Whoever makes, expresses, publishes or disseminates through any 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.” The new section means that any person can get three years imprisonment and/or a fine of Rs 10,000 for any social media post that can be considered as “offensive” or “defamatory.” If one person shares such posts or opinions, he/she too will face the same sort of punishment. This indistinct law makes it easy for an individual or government, or police to use it against those they disagree with.
The new law places limit on free speech and the vague scope leaves it wide open for misuse. Meanwhile, Kerala’s Left government claimed that the recommended amendment aimed to fight cyber-crimes against women. However, this has been mentioned nowhere in the section. The new law will help those already misusing defamation laws to sue over the smallest disagreements. This, in turn, can lead to a rush of FIRs, which poses a great challenge in law enforcement.
Above all, Section 118A in the Kerala Police Act will be a cognisable offence, legitimising the police to file suo-motu against anyone. This means that police do not need a warrant to arrest a person or probe against them. The Preamble of India’s Constitution guarantees freedom of speech and expression, among other things like liberty of thought, expression, belief, faith, and worship.
The new legal section added in Kerala Police Act is similar to the notorious Section 66A of the Information Technology Act, 2000, which was struck down by the Supreme Court in the iconic case of Shreya Singhal in 2015. It needs no explanation that the new Section is the re-launch of 118(d) of the Kerala Police Act or Section 66A of IT Act with a little window dressing. The Kerala government now claims that the Centre had done nothing to fill the void created by this judgment and which is why they had to move forward in amending the Kerala Police Act.
In this context, the aspect that needs more attention is the geographical implications. It is a well-accepted fact that Malayalis can be found living anywhere in the world. It needs to be highlighted that a simple online spat could theoretically result in a case being registered in his hometown in Kerala.
It is impossible to guess as to what exactly might have catapulted the amendment move. There is yet no study indicating that the existing laws are inadequate. If the available laws have been found toothless, they should have pointed it out at forums or official communications. Any move of this sort seems to be confounding. However, it is well known that the government under Pinarayi Vijayan has been critical of a section of the media for taking part in a political conspiracy against the state. In September, dubbing artist Bhagyalakshmi and two other women activists assaulted a YouTuber, Vijay Nair, who was making sordid remarks against women on his YouTube channel.
Ironically, a few weeks back, the Kerala government had issued a statement objecting Centre’s move to change the controlling body concerning digital media and OTT platforms. The state government, which has passed the draconian ordinance, has now, placed the controversial law on hold due to backlashes. Besides, during the 2019 general elections CPI (M)’s election manifesto had demanded the Centre to revoke Defamation from the Indian Penal Code and CPI (M) leader P Rajeev had made a speech against Section 66A of IT Act in Rajya Sabha. Moreover, CPI (M) General Secretary Sitaram Yechury said the Kerala Police Act amendment "ordinance would be reconsidered." Reportedly, when asked if “reconsidered” could mean toning down the ordinance, he indicated that it means the ordinance will be scrapped. CPI General Secretary D Raja also said that he was "uncomfortable" with the ordinance. He added that the party had expressed its opinion on the matter to the state leadership. The statement comes after a political storm broke out over the controversial act.
It turns out that the Cabinet had been misguided into recommending this amendment without explaining the implications. This resulted in severe backlash from all areas of people. With the state currently rethinking their position, they might leave it to the assembly to remove the draconian ordinance thereby washing their hands of any responsibility.