Last week, Kerala passed an ordinance that sought to punish anyone “making, expressing, publishing or disseminating” through any mode of communication “threatening, abusive, humiliating or defamatory” matter with a jail term of up to three years.

While Governor Arif Mohammed Khan has given his approval to the ordinance, which amended the Kerala Police Act, the legality of the new provision has come under serious scrutiny.

The ordinance has several problems.

First, it reintroduces in a different language provisions of the Central Information Technology Act that the Supreme Court had struck down in 2015 as violative of the right to free speech and expression. Second, the law seems to provide police powers it does not have – it allows the police to take cognisance of defamation when the Supreme Court has made it clear that it could not do so.

Despite the Opposition slamming the Left Democratic Front government for the ordinance, Chief Minister Pinarayi Vijayan has doubled down, stating that there was a void in law after the Supreme Court decision in 2015, which the Centre had failed to fill. He said that the government has received many complaints of intense cyber bullying, which has even harmed the domestic lives of many people.

This article will explain why this is not a good enough reason for the law to stand judicial scrutiny.

Recycling Section 66A

In a landmark judgement in 2015 in Shreya Singhal vs Union of India, the Supreme Court struck Section 66A of the Information Technology Act down for the arbitrary nature of the provision and the vagueness of the text that was undefined.

Section 66A had read:

“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.”  

In the same judgement, the court had also struck down Section 118 d of the Kerala Police Act that punished acts causing annoyance to any person in an indecent manner.

The Kerala government has now said that the Centre had not done anything to fill the void in law created by this judgement, which is why it had to move to amend the Kerala Police Act.

The new provision added to the Kerala Police Act, aimed at offensive social media posts, reads as follows:

“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.”

Like Section 66A, the crimes that the provision seeks to punish remain vague without a proper definition and is prone to a wide interpretation. For example, even fair criticism could be perceived as “humiliation” by the other party. While the Kerala Police Act says that words and expressions not defined in it will assume the meaning and definition of the terms as available in the Indian Penal Code and the Code of Criminal Procedure, even the IPC and CrPC do not have a definition for humiliation.

Further, the provision brings under its ambit defamation. The Supreme Court has made it clear in the past that the police cannot act on its own over defamation and there has to be a complaint in court from a private person for initiation of criminal defamation proceedings. This is a crucial safeguard on the right to expression and press freedom, which this new Kerala provision breaches by making defamatory content a cognisable offence.

As per Section 500 of the Indian Penal Code, criminal defamation carries a jail term of two years. However, the new provision would punish a person with up to three years in prison for similar crime. The same goes for “threatening”. Under the IPC, criminal intimidation carries a term of two years.

The way the Kerala provision has been framed, with the use of the term “any kind of mode of communication”, would mean that even newspapers and other media platforms could come under its ambit. In fact, Vijayan had specifically mentioned last week that vile cyber attacks were being carried out “in the guise of journalism”. However, he had also clarified that the amended Actwill not be used against the media.

What Vijayan has missed is that while the Left Democratic Front government may not use it against journalists, a law would continue to be in effect even if the LDF government fell. There is no guarantee that the next government, to be elected in May 2021, will stick to this promise.

Not just a Kerala law

The other aspect of the ordinance that has been ignored is that though it is amending the Kerala Police Act, in application it could drag anyone in the country into its net.

For example, the police could in theory book a person sitting in Bengaluru for a defamatory post on social media against the chief minister, given that such a post would appear in Kerala as well.

Further, the text of the law not only punishes publication of such posts but also dissemination. This means, someone retweeting the post or even liking it, which spreads the “defamatory” or “humiliating” content further, could also be booked under the provision.