On Tuesday, 24 November, the Kerala government took a decision to withdraw the controversial ordinance it had enacted over the weekend, which added a new Section 118A to the Kerala Police Act and was widely criticised for being a crackdown on free speech.
The Kerala Cabinet has prepared a second ordinance to withdraw the first, which had received governor’s assent on 21 November, according to reports from news agency PTI.
News 18 reported that the cabinet has already approved this second document, and forwarded it to Kerala governor Arif Mohammed Khan.
The decision comes hours after the Kerala government had assured the Kerala High Court – where a number of petitions against the ordinance had been filed – that no FIRs would be registered on the basis of it, since the government had on Monday decided to put it on hold.
They also informed the bench of Chief Justice S Manikumar and Justice SP Chaly that no coercive action would be taken against anyone on the basis of the ordinance.
WHAT WAS THIS ORDINANCE ABOUT?
The ordinance amended 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 had 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 was 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 under it.
WHY WAS THE ORDINANCE CONSIDERED ‘DRACONIAN’?
Digital rights activists, civil society from across the spectrum and opposition parties had raised objections to several aspects of this ordinance, including:
- allowing all persons to complain, rather than individuals, meaning companies and even deities could file cases under it;
- using 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, i.e., 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 the 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 therefore they could “be used in such a way as to have a chilling effect on free speech.”
Disturbing Amendment: Editors Guild of India
Earlier on Tuesday, the Editors Guild of India too had put out a press statement urging the Chief Minister of Kerala to withdraw the “disturbing amendment.”
Stating that the amendment was “on hold” at the time of the publication of the press release, the Editors’ Guild wrote that “the ordinance is still in force and has the potential for grave misuse and should be withdrawn forthwith.”
“The amendment to the Kerala Police Act would deeply hurt the cause of free speech and freedom of press as it gives unbridled powers to the police to target political opposition and the press in the name of monitoring content on social media. Editors Guild reiterates immediate withdrawal of this section 118 A of the Police act.”Editors Guild of India
(With inputs from PTI and News 18.)
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