Kerala Ordinance: Why Is It Controversial & Is It Withdrawn?

The amendment to the Kerala Police Act is a throwback to Section 66A, which SC struck down in 2015.

Kerala Chief Minister Pinarayi Vijayan announced on Monday 23 November that the controversial Kerala Police Act ordinance would be withdrawn.

(Photo: PTI)

On Monday, 23 November, Kerala Chief Minister Pinarayi Vijayan announced that the controversial ordinance announced by his government a few days ago to ‘deal with crimes committed through social media’ (according to officials) would not be implemented in the state, following severe criticism of the move.

“With the announcement of the amendment, different views arose from different quarters. Concerns were expressed by those who supported LDF and those who stood for the protection of democracy. In this situation, it’s not intended to amend the law.”

Pinarayi Vijayan to ANI

He went on to say that detailed discussions on the proposed ordinance would take place in the legislative Assembly, “and further steps will be taken in this regard after hearing the views of all parties.”

But what exactly was this contentious ordinance? Why was it slammed for being draconian, and a throwback to Section 66A of the IT Act (which was struck down by the Supreme Court in 2015)? And has the Kerala government actually withdrawn the proposed law?

WHAT DID THE ORDINANCE DO?

The proposal for this ordinance actually came up over a month ago, but was only finalised last week, and and received assent from Kerala governor Arif Mohammed Khan on Saturday, 21 November.

The ordinance amends the Kerala Police Act (a state-level criminal law), adding a new Section 118A. This provision punished 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.

WHY WAS THIS CONSIDERED DRACONIAN?

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 cognisable offence, ie, one that the police could investigate without a magistrate getting to scrutinise 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 criminalise 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, the ordinance was on shaky grounds and was likely to be struck down as unconstitutional by the constitutional courts (ie the Kerala High Court or the Supreme Court).

HOW WAS THE ORDINANCE OPPOSED?

The ordinance drew a great deal of flak from commentators and experts from across the political spectrum, online and offline. CPI(ML)‘s Kavitha Krishnan criticised the Kerala government for bringing in a “draconian law”.

Digital rights activist and cyber security expert Anivar Aravind told the News Minute:

“It is draconian. Section 66A was limited to communications online but this 118A applies to any mode of communication. It’s not related to women’s safety or anything that the government had earlier said. This is a speech law, restricts speech without any domain limitation, it restricts Article 19 of the Constitution in an active way and is not protected by Article 19(2).”

Two petitions were also filed against the ordinance in the Kerala High Court, one by Kerala BJP president K Surendran, and the other by the UDF’s Shibu Baby John, NK Premachandran and AA Azeez.

Surendran argued that the new provision was beyond the scope of the Kerala Police Act, and that existing criminal provisions in the IPC and elsewhere adequately addressed any actual illegalities. Both petitions cited the Supreme Court’s Shreya Singhal judgment to argue that the ordinance was unconstitutional.

WHAT HAPPENS NOW?

While the Kerala government has said the ordinance won’t be implemented following all the criticism it has received, it has not yet officially withdrawn the amendment, which would require a gazette notification.

Until the ordinance is withdrawn, it can still technically be used to file FIRs against people accused of violating the provisions of Section 118A of the Kerala Police Act.

As a result, the legal challenges in the Kerala High Court can still proceed – the high court can when hearing these pleas impose a stay on the operation of the ordinance.

Even if the ordinance is not withdrawn, however, the controversy will not be over since the Kerala legislative Assembly will be considering this issue at some point in the future.