Recently, the Kerala government promulgated an ordinance to clamp down online abuse, which empowers the police sweeping powers.
Kerala government’s backdoor legislation through an ordinance to prosecute online bullies has been attracting India wide criticism. From left to right, dissent from almost every political section including the communist groups has cornered the government. It has been feared that the new law will empower the state to crush dissenting voices. Eminent lawyer and entrepreneur Gautam Khaitan has criticized the ordinance, says that it will create a chilling effect on the people who objurgate the government and its policies.
‘Will not stand the court scrutiny’
Gautam Khaitan has said that Section 118A of the Kerala Police (Amendment) Ordinance, 2020 violates Article 19 of the Constitution of India. “It will not stand the court scrutiny. In 2015, the apex court had struck down Section 66A of the IT Act and Section 118(d) of the Kerala Police Act as they were violative of freedom of speech and expression enshrined under Article 19. If this Ordinance is challenged in the court, it will have to face the same consequences.” It is being seen as an attempt to curb not only opposition, but also freedom of speech and expression. It can certainly be said that this move by the government has created a draconian picture and has backfired the government.
Section 66A of the IT Act was annulled by the Supreme Court in Shreya Singhal vs UOI, Writ Petition (Criminal) No. 167 of 2012. Then a law student, Shreya Singhal had challenged the said provision through a PIL in the apex court when Maharashtra Police had arrested two girls under Section 66A of the IT Act after they criticized the Bandh in the wake of the death of Shiv Sena chief Bal Thackeray.
Section 118A of the Kerala Police (Amendment) Ordinance empowers the police to register cases against the individuals and to arrest them without warrants. It stipulates three-year imprisonment with a fine to the culprits.
It reads as, “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 both.”
This law if comes into force will restore the same legal flaws which Section 66A of the IT Act consisted of and a bare reading of the law will make it evident that this law is indistinctive in nature and can be indiscriminately used by the Government or individuals simply against whom they disagree with. This law would eventually lead to massive flood of FIRs filed against all/any kinds of issues against individuals. Moreover, the scope of Section 118A if examined is wider as compared to Section 499 IPC because the latter is restricted only to defamation and to its contrary S.118A covers threats, abuses and humiliations, however S. 118A permits truth as a complete defence unlike S. 499 IPC.
Archaic law promulgated to bring Police Raj
Gautam Khaitan said that there are multiple legal options under various sections of the IPC and other statutes to tackle online misuse. “The government can explore amongst the ample legal options that are available to curb online bullying, but bringing such a law through an ordinance amidst the pandemic raises several questions such as to suppress the dissenting voice via making the state a Police Raj,” he added.
Section 118A being a cognizable offence empowers police to arrest without warrant and being aware of the fact that this concept is one of the most misused power. Hence, it would not be wrong to say that if this ordinance comes into force then it would bring back the Police Raj.
As per the recent reports available, the Kerala government has decided to reconsider the new law under fire. The amendment to be nullified was promulgated on 21st November, 2020. In the case of the first ordinance, the Governor kept the order for 30 days without signing the ordinance, but on the contrary, the annulment ordinance was signed within one day. This itself indicates that the Governor, too was not pleased with this new Ordinance, and that is the reason why he kept it for 30 days and took just a day when the time came to revoke it. Sources have revealed that the central leadership too was not pleased with the ordinance and had demanded drastic changes before implementing such a law. Mr. Gautam Khaitan further feels that if such a law is imposed in the state it would have its own repercussions and would end up facing rejections from the society at large. Only one thing that has been effectively developed by this law is causing “constant strain” on the Government of the State of Kerala.
On 25th day of November, 2020 the High Court of Kerala comprising of the Hon’ble Chief Justice Mr. S. Manikumar and Hon’ble Mr. Justice Shaji P. Chaly was pleased to issue an interim order making it clear that no adverse action, suo motu case or FIR shall be registered invoking the controversial ordinance which introduced Section 118-A recently to the Kerala Police Act, 2011, until the State Government takes a decision on its implementation.
With over three decades of experience in the corporate legal world, Gautam Khaitan is the managing partner of OP Khaitan & Co and heads the corporate division of the firm.
