The cyber atrocities related to women are continuously increasing and women are very much distressed on online attacks. The Cyber attacks are threat to privacy of life as well. Hence the State of Kerala decided to amend the Police Act since the existing laws were found to be inadequate to tackle the issue. The state cabinet recommended the Governor to issue the amendment in the Act as an ordinance.
The Kerala government’s decision to amend the Kerala Police Act 2011 to curb cyber atrocities, especially against women and children has evoked strong opposition from various quarters. As per the new ordinance a new section, Section 118 – A will be added to the Police Act to give it more teeth. Under the new section, those who produce or publish defamatory or abusive content intended to defame any person through any means of communication can be imprisoned up to five years or a fine of up to Rs 10,000 or with both.
What is the ordinance?
The proposal for this ordinance (Ordinance No. 79 of 2020) actually came up over a month ago, which was finalized and received assent from Kerala Governor Arif Mohammed Khan on Saturday, 21 November.
The Kerala Police (Amendment) Ordinance, 2020 amends the Kerala Police Act, 2011 (a state-level criminal law), by adding a new Section 118A.
“118 A. 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 term which may extend to three years or with fine which may extend to ten thousand rupees or with both”.
This provision will punish any kind of “communication” – including statements, articles, social media posts, etc – which threatens abuses, humiliates or defames a person or class of persons.
The person making this communication has to know that what they’re saying is false, and that it will cause “injury to the mind, reputation or property” of the targeted person or class of persons.
The punishment for this offence is up to three years’ imprisonment and/or a fine up to Rs 10,000. Even those who had just shared a post could be punished.
The ordinance was stated to come into force immediately, and like any other ordinance, had a shelf life of six months before it lapsed – though the state legislative Assembly could always pass a similar law during that period to make it permanent.
What’s the impact of it:
When the proposal for this ordinance became known, digital rights activists at the time itself raised concerns about it. The Internet Freedom Foundation, for instance, made a representation to the Kerala government asking it to scrap the idea, pointing out that it could criminalise online speech because of its “vague expressions” and that it was “liable to subjective and arbitrary application.”
However, the ordinance that was approved by the Kerala government over the weekend was actually more vague than the original proposal, expanding who could complain (persons rather than individuals, meaning companies and even deities), added vague terms like abusing and humiliating (instead of restricting to those harming the reputation of an individual, which at least was connected to defamation) and making Section 118A a cognizable offence, i.e., one that the police could investigate without a magistrate getting to scrutinize the complaint and then directing a probe (which is the case with criminal defamation, for instance).
These problematic aspects of the ordinance meant that it was actually extremely similar to the old Section 66A of the Information Technology Act that was struck down by the Supreme Court in the Shreya Singhal case in 2015 as overbroad and unconstitutional.
In fact, as was pointed out by many commentators, in that 2015 judgment, Justices Rohinton Nariman and Jasti Chelameswar also struck down a similar provision that had been added to the Kerala Police Act in 2011 (then termed Section 118(d)).
In that judgment, the apex court had held that that terms used in these provisions were too vague, and would criminalize even speech that was innocent in nature, and that therefore they could “be used in such a way as to have a chilling effect on free speech.”
Legally, therefore, this Kerala Police (Amendment) Ordinance, 2020 is on shaky grounds and is likely to be struck down as unconstitutional by the constitutional courts (i.e. the Kerala High Court or the Supreme Court).
Advantages of ordinance:
- This ordinance will sort out the problem of cyber bullying & hate speech over social & digital spaces.
- The provision will address unwarranted harassment faced by individuals, especially women and transgender community, on social media.
- This ordinance is a step to curb the false allegation made through social media and otherwise which essentially questions the liberty and constitutional dignity of persons.
- Everyone has freedom of speech and expression but if anyone makes statement threatens and defame you unnecessarily through any mode of communication then he/she will be punishable under this provision. This provision has given direct right to police to file complaint.
Disadvantages of ordinance:
- Section 118A of Kerala Police Act is similar to Section 66A of the Information Technology Act 2000 which was quashed in entirety for being unconstitutional, void and vague by Supreme Court of India. The words used in this Section 118A are used in board terms. Ordinance has the potential for great abuse against lay people and the media
- The new ordinance is anti-democratic and in violation of the Constitution. The law will lead to violation of citizens’ rights and misuse by police. With the new law in place, defamation will become a cognizable offence and a police officer can register a case and arrest the person. This law will give power to Police to arrest anyone and put in jail for even criticizing the Government.
- Despite the fact that the rate of cyber attacks is on the rise, this ordinance will do more harm than good. It will lead to a situation where no one can respond or comment on any topics. For eg:- Even a simple statement of a person stating that this Government is corrupted, will attract offense according to this new Section.
- It should not be implemented in haste. The law will adversely impact the politicians and leaders, especially during election times. But, it is a fact that even after quashing the Section 118-D of the Kerala Police Act, 2011, cases were registered under it.
Ordinance and freedom of expression
As long as the interests of people, either individually or collectively are taken care of, there can be no objection to government regulation but the problem arises when, in the name of regulation, it starts censoring i.e. encroaching upon the civil rights of the people viz. freedom of speech and expression etc. Although there are safeguards in this regard, every State tends to surpass them in some way though its magnitude may vary from State to State. Government cannot curb right to free speech even to promote general public interest.
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 and not to forget 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 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 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 over breadth, 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 Ordinance will be violation of freedom of speech.
Freedom of expression on cyber space and law to it:
The term cyber or cyberspace has today come to signify everything related to computers, the Internet, websites, data, emails, networks, software, data storage devices (such as hard disks, USB disks etc) and even electronic devices such as cell phones, ATM machines etc.
Several cybercrimes, defamation, invasion of privacy, incitement of offences, racist remarks, stalking, abuse, hacking, harassment and many more can be easily committed through social media and once such objectionable content is uploaded, it becomes viral and consequently, very difficult to contain. Hence, it is important for State to regulate the cyberspace / social media Cyber law is the law governing cyber space.
Although the Information Technology Act was in force since 2000, India did not strictly implement the Act before the 2008 terrorist attack on Mumbai. After the attacks, the Information Technology Act, 2000 was amended to expand and strengthen the monitoring and censoring capacity of the Government. The cyber law of India now contains provisions relating to blocking of websites, monitoring and collecting internet traffic data, interception or decryption of such data, unhindered access to sensitive personal data, holding intermediaries viz. social media websites liable for hosting user-generated objectionable content, etc.
CONCLUSION:
It is clearly evident that social media is a very powerful means of exercising one’s freedom of speech and expression. However, it is also been increasingly used for illegal acts which has given force to the Government’s attempts at censoring social media. Where on the one hand, the misuse of social media entails the need for legal censorship, on the other hand, there are legitimate fears of violation of civil rights of people as an inevitable consequence of censorship. What is therefore desirable is regulation of social media, not its censorship. However, the present cyber laws of India are neither appropriate nor adequate in this respect. An analysis of the existing IT laws shows that there is unaccountable and immense power in the hands of the Government while dealing with security in the cyber space. Even then, it is not sufficient to check the misuse of social media. Hence, a specific legislation is desirable to regulate social media. The government should consult experts and representatives of women organizations before bringing comprehensive legislation to curb cyber atrocities against women. The Chief Minister of Kerala said that the amendment has brought only to protect the citizens not also assured that it won’t be using it against the media person. But the provision is so vague that the police can misuse their power. Even if the victim doesn’t file complaint, under this new provision the police can suo motto file the complaint and being cognizable offence can arrest the accused event without warrant.
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