Kerala's Draconian Free Speech Law: How the Left Strayed on the Path of the Right

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.

Note: A few hours after this article was published, the Kerala chief minister said the controversial amendment is being put on hold due to criticism from various quarters.

On November 21, the governor of Kerala promulgated The Kerala Police (Amendment) Ordinance, 2020 as the legislative assembly is not in session. The cabinet had submitted its recommendation to the governor in late October. Vide this ordinance, a new Section 118A has been introduced in the Kerala Police Act, 2011.

This is being widely viewed as a brazen assault on freedom of speech.

The new Section 118A 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 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.”

Counters freedom of speech guaranteed under the constitution

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.

Also read: In Kerala, a CAG Report Kicks up Political Controversy and More

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 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 is also likely to be struck down by the Supreme Court.

Potential for abuse and rumblings of a police state

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 the cyber space, 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).

Also read: The Political Life of Kodiyeri Balakrishnan, Who Stepped Down as CPI(M) Kerala Secretary

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 had 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.

A political faux pas

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.

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. Rajeeve 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 criticise any such misadventure by the Right (or for that matter anybody) in the future and freedom of speech will be seriously imperilled.

The Left, having strayed on the path of the Right, has shot itself in the foot. It is disappointing that a Left government has blundered into this ill-advised, ill-timed act of intolerance regarding freedom of speech, which the Right has often been accused of being eager to trample on. In a classic Freudian slip, an assiduously cultivated veneer of a higher moral pedestal has suddenly fallen. With a howler like this to sully its reputation, the Left runs a serious risk of becoming the Right – minus the cow and the temple.

Dr N.C. Asthana, a retired IPS officer, has been DGP Kerala and a long-time ADG CRPF and BSF. Views are personal. He tweets @NcAsthana.