Kerala has decided to enforce a new law to give police the sweeping powers to arrest and prosecute people for social media posts deemed intimidating, insulting or defamatory — bringing back a provision that critics say will lead to State overreach and undermine fundamental rights guaranteed to all Indians. The law, being brought in through an executive order the governor signed off on Saturday, says a person can be punished with a prison term of up to three years or a fine of up to ₹10,000 (or both) if they are found guilty under what will be known as Section 118(A) of the Kerala Police Act. The move is necessary to stop hate speech and cyber bullying, the state government has said, citing in particular a recent case of a YouTuber who made purportedly derogatory remarks targeting women in a video.
The key wording of the Section 118(A) — it seeks to punish people for “any matter or subject for threatening, abusing, humiliating or defaming a person or class of persons” — harks back to two similar laws that have been struck down by Indian courts. In 2015, the Supreme Court found that Section 66A of the Information Technology Act violated the fundamental right to free speech under Article 19(1)(a) of the Constitution and did not qualify as a reasonable restriction under Article 19(2). Known as the Shreya Singhal order, it is seen as a milestone for Indian jurisprudence for several reasons. It upheld the liberty of thought and expression as “cardinal” and criticised vague legal wordings that allowed for misinterpretation and misuse by law enforcement. It also addressed a more fundamental challenge in regulating speech, when judges J Chelameswar and Rohinton F Nariman said: “What may be offensive to one person may not be offensive to another”.
The old Kerala law — Section 118(D) of Kerala Police Act — suffered from same problems as Section 66A and was struck down by the top court. There is little to suggest the new one is on a more sound legal footing. It appears to violate the spirit of the Shreya Singhal judgment and, by defining the crime it attempts at punishing as cognisable, gives the State the power to open investigations on its own. The Kerala government’s justifications fail to address the criticism that there are sections of the Indian Penal Code and IT Act that it can instead utilise. Those laws also have in-built safeguards. Kerala must step back.
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