Kerala Shreds Shreya Singhal Judgment, 'Humiliating' Tweet Can Get You Three Years in Jail

The opposition parties allege that the amendment will give more power to the police and also curtail the freedom of the press.

New Delhi: With Kerala governor Arif Mohammed Khan signing the Kerala Police Act Amendment ordinance into law, the police in the Left Front-ruled state will now have the right 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”.

The jail term for this offence may extend to three years.

The ordinance, which was approved by the state cabinet last week, introduces a new section, 118A, of the Kerala Police Act. According to state government officials, the new section is needed to deal with “crimes committed through social media”.

The specific provision reads:

“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 a term which may extend to three years or with fine which may extend to ten thousand rupees or with both.”

In 2015, the Supreme Court in the Shreya Singhal case had struck down Section 66A of the Information Technology Act and Section 118D of the Kerala Police Act, finding both provisions unconstitutionally vague and thus violative of free speech rights.

Section 118D  of the Kerala Police Act made it an offence for any individual to cause “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,”

The Supreme Court found that the impugned sections proscribed a range of acts if done via electronic means but did not define what terms like “intimidation”, “menacing”, “chasing”, “persistent” used actually meant.

The new Kerala ordinance appears to suffer from the same deficiency, as it is not clear what precisely would constitute “threatening, abusive, humiliating or defamatory” matter. The police would be left to exercise its discretions and judges too, in the absence of clarity in the statute, may be likely to go along with the police’s interpretation.

Rights activist Anoop Kumaran, who had earlier been prosecuted under Section 118D for a Facebook post and had gone on to challenge the constitutionality of the provision, described the new section, 118A, as even worse than what the Supreme Court had struck down.

The Left Front government says the provision is needed to prevent cyber attacks against women and children but it is not clear why existing provisions of law which cover threats or intimidation cannot be applied to the same acts committed via electronic means.

The opposition parties have alleged that the amendment will give more power to the police and also curtail the freedom of the press, a charge which was rejected by chief minister Pinarayi Vijayan who said the decision had been taken based on factors such as abuse of social media to tarnish the image of individuals.

Also read: Kerala Becomes 5th Opposition-Ruled State to Withdraw General Consent to CBI Probes

Expressing concern over the rising crime graph, fake propaganda and hate speech on social media since the outbreak of COVID-19, the LDF government had said since cyber attacks are a major threat to private life, it has been decided to amend the Police Act as the existing legal provisions were inadequate to fight such crimes.

It said while the Supreme Court had repealed section 66-A of the IT Act and Section 118 (d) of the Kerala Police Act on the grounds that these were against freedom of expression, the Centre has not introduced any other legal framework.

“In this scenario, the police are unable to deal effectively with crimes committed through social media,” the government had said.

(With PTI inputs)