This article comments on the proposed amendment to the Kerala Police Act, 2011 which seeks to penalise threatening or defamatory speech. The broad and vague wording of the provision makes it susceptible to be used for muzzling dissent and free speech in the State.
A recent move by the Kerala Government to address social media abuse has led to grave concerns over the freedom of speech in the State. The Government is introducing an amendment to the Kerala Police Act (KPA), 2011 in order to prohibit cyber-attacks against women through social media. The amendment will add Section 118 A to the KPA, which will criminalise producing, publishing or propagating content through any means of communication, with an intention to threaten, insult or harm the reputation of an individual. This ‘offence’ would be punishable with an imprisonment of term up to five years and up to Rs 10,000 fine. Additionally, it will empower the police to proceed against an individual on this charge,suo motu (on its own), without requiring a formal complainant.
The amendment comes as an aftermath to the observations made by the Kerala High Court in May 2020 in the case of Sreeja v State of Kerala. Here, the court was considering the bail application of a news anchor who had published content on YouTube and Facebook, found violative of Section 67 of the Information Technology (IT) Act. The court noted that in order to fall under the ambit of Section 67, the speech should be of certain characteristics. For instance, it should involve lascivious elements arousing sexual thoughts, or the words must have the effect of depraving persons, and defiling their morals through sexual appeal, etc. While the court in this case did not examine if the content published in this case was obscene within the meaning of Section 67, it remarked that certain speech — although abusive and unparliamentary — may not meet its requirements or attract penalty under the provision. Hence, the court observed that there was a need to introduce a legislation which can penalise such speech and curtail the rising incidents of social media abuse. Further impetus to the government’s move was provided when in September 2020, dubbing artist Bhagyalakshmi along with two other women were accused of assaulting a man who had published a YouTube video containing vulgar comments about them.
The State Cabinet has thus decided to recommend the Governor to issue an amendment by way of an Ordinance, in order to prevent cyber-attacks against women. However, the broadly worded amendment proposed by the government is likely to have an adverse impact on the freedom of speech. The proposed provision will apply to ‘any means of communication’ and will be directed against any speech that ‘threatens, insults, or harms the reputation of an individual’. The wording of the amendment in such a manner makes it highly indeterminate and capable of multiple interpretations. It is likely to encompass a wide range of communication, including mainstream media, thus having an overall freezing effect on free speech. Coupled with this is the power being accorded to the police to act on its own —without the need for a formal complaint by an aggrieved party— making the new law further susceptible to arbitrary enforcement and misuse.
It is noteworthy that in 2015, the Supreme Court in the Shreya Singhal case struck down both Section 66A of the IT Act and Section 118 of the Kerala Police Act, which prohibited ‘causing annoyance to any person in an indecent manner’ through a variety of means. The court had found the words “causing annoyance in an indecent manner” to be vague and thus violative of the constitutional right to free speech. It was also noted that the provision in question had been cast so widely, ‘that virtually any opinion on any subject would be covered by it’. More importantly, the court also laid down that restrictions on freedom of speech, must be ‘couched in the narrowest possible terms’. Yet, to fulfil a perceived gap created by the striking down of Section 66A, the Kerala Government is introducing an equally vague law, seeming to limit a wide range of media and discourse.
There are existing provisions within Indian law that can be utilised to address online abuse. Section 509 of the Indian Penal Code can be invoked to address online sexual harassment which prohibits ‘word, gesture or act intended to insult the modesty of a woman’. The word ‘gesture’ within this provision has been accorded a broad interpretation by the Kerala High Court in M.M. Haries v State of Kerala to include written communication. Additionally, Sections 354A and 354D of the Indian Penal Code prohibit sexual harassment and stalking, including cyber-stalking. Governmental efforts should thus focus on adequate enforcement of the existing laws and simplifying the process of making complaints.
The implications of this law on free speech necessitate robust scrutiny. Yet, the amendment is being brought through an Ordinance and thus any legislative discussion in the Assembly on this issue will be withheld. No pre-legislative consultation has been carried out in order to gather insights from women’s experience online. A new provision to address online sexual harassment should include and define specific conduct through which online abuse may be perpetrated. Instead of enforcing an overly protectionist law, the government must utilise this opportunity to address issues such as cyberbullying, morphing of images, email spoofing and trolling, which the police find difficult to prosecute under the current law.
The amendment comes at a time when India’s ranking in the global Press Freedom Index has slipped to 142 out of 180 countries. Although the precise impact of the provision would depend on the exact wording of the amendment ultimately enforced, the issue nevertheless demands to be approached with great caution. The Governor of Kerala is currently reported to be examining the constitutional validity of the amendment in light of the concerns raised over its implications on free speech. Any legislative action on this issue must balance two compelling objectives — of preventing cyber-attacks against women, and protecting the freedom of speech, considered sacrosanct in a democracy.
Views expressed by the author are personal and need not reflect or represent the views of Centre for Public Policy Research
Featured Image Source: The New Indian Express
 Section 67 of the IT Act prohibits publication of obscene material in an electronic form.