The Kerala government has been criticised for its new law to criminalise ‘offensive’ posts on social media, with experts as well as the opposition calling it draconian and an attempt to stifle not only dissent but also freedom of speech and expression. The CPI(M)-led government in Kerala has introduced Section 118A in the Kerala Police Act, via an ordinance, which received the Governor’s assent on Saturday.
According to the new law, “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.” This means that a person can face three years in jail and a fine of Rs 10,000 for any social media post that is considered “offensive” or “defamatory”.
Notice how 66A and the Kerala law is couched in similar language. The latter allows a police officer to register an FIR, begin a probe and make arrests even on grounds like someone being humiliated or defamed or faced “injury to the mind or reputation”. This is draconian, far exceeding the IPC provision on criminal defamation, which puts the onus for lodging complaints on a defamed victim, not the police.
This is not just for writing or creating such a post, but those who share that post or opinion will also face the same kind of punishment. The law is unspecific and indistinct and can be indiscriminately misused by individuals or even the government and the police, who may use it against those whom they simply disagree with. The old Kerala law — Section 118(D) of the Kerala Police Act — suffered from the 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.
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.
- Prabhakar Purandare