The amendment to the Kerala Police Act, 2011, that was supposed to arm the police to act decisively against sadistic but cowardly minds who use the cover of social media to throw filth on women has ended up empowering the police to harass and punish even mainstream print and visual media that produce material that is “humiliating” or “abusing”.
What “humiliating” or “abusing” is, the new amendment seems to have left to the wisdom of the police or their political masters. Shockingly, the new amendment criminalises even unpublished content.
Stifling creativity
Here is how Section 118(A), the new amendment, reads (the italics is for emphasis): "Whoever creates, 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 a fine which may extend to Rs 10,000 or with both."
This means that a media house only has to create a pre-production content (a script or a small brief) that is deemed humiliating or threatening or abusive or defamatory by the police for it to be punished under the Kerala Police Act.
That the newspaper or the television channel had not published or disseminated the content does not matter.
“If something is found in your computer that is offensive to someone, you could be hauled up. Creativity will be criminalised," said G Mohan Gopal, former director, National Judicial Academy and former Vice Chancellor, National Law School, Bengaluru. He said the new amendment vested draconian and unbounded powers in the hands of the police.
At the mercy of the ruler
Chief Minister Pinarayi Vijayan, in a clarification issued on November 22, said the new amendment would not be used against “independent opinions” or “impartial journalism”.
But such assurance can be given by anyone who rules according to his whim. Where is the disciplining legal clause that would force the ruler to keep his promise?
When the law is open-ended, the understanding of "independent" and "impartial" can also change, just the way the efficiency and trustworthiness of the central investigating agencies had changed over a matter of two-and-a-half months for the LDF government.
Even this observation in this Onmanorama report could be considered "humiliating" for the government, and Section 118(A) invoked.
Women's wish granted, but with a curse
The police need not wait for a complaint to initiate action as the infringement mentioned in the amended clause is a cognisable one. The police can suo motu register a complaint. It is not like defamation where an aggrieved person has to first make a complaint for the police to act.
In fact, Section 118(A) comes very near to what women wanted. When Bhagyalakshmi filed a complaint against a YouTuber (Vijay P Nair) spewing stinkers at even venerated women, the police had failed to act saying the law was too weak for them to take a case on their own.
During the last five years, the Cyber Cell had been receiving 30,000 to 50,000 complaints annually, and in 70 percent of the cases there has been no progress. A top police officer said a case under cyber law could be taken only if it involves sexually explicit content, child pornography and material that compromises national security.
In YouTuber Vijay P Nair's case, too, there was no sexually explicit content, only an offensive monologue uglier than forged graphic content. The women had to eventually rough up Vijay P Nair in public for the government to finally sit up and take notice.
The new amendment will now allow the police to quickly pounce on a foul-mouthed YouTuber like Vijay P Nair. "But the problem is, the same amendment could be used to stifle freedom of speech and, because of this, would soon be struck down by the courts. Ultimately, women would be left with no protection in the law," said J Sandhya of Human Rights Law Network.
Keeping things vague
Section 66A of the Information Technology Act, 2000, which was intended to pull up cyber criminals, was struck down by the Supreme Court because it was “vague” and “over-broad” and said it was “cast so widely that virtually any opinion on any subject would be covered by it.”
If the section was given constitutionality, the apex court said “the chilling effect on free speech would be total.”
Here is the now defunct Section 66(A): "Any person who sends by any means of a computer resource any information that is grossly offensive or has a menacing character; or any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult shall be punishable with imprisonment for a term which may extend to three years and with fine."
Clause 118(A) is almost similar, except that its sweep is even broader, it criminalises content found not just on the internet but in all means of communication.
“Grossly offensive” Section 66(A)
The casual manner in which Section 66(A) was misused should have served as a warning for the CPM-led Kerala government. It was outrageous how the Maharashtra government interpreted just one element in the section, “grossly offensive”.
Two girls were arrested in Thane, Maharashtra, in November, 2012; one for putting up a Facebook post questioning the shutdown in Mumbai following Shiv Sena leader Bal Thackeray's death and the other for liking it. The BJP government in Maharashtra found both “grossly offensive”. A law student named Shreya Singhal filed a Public Interest Litigation and got the section scrapped.
The Supreme Court, in its 2015 ruling in the Shreya Singhal v. Union of India case, had said that none of the expressions used in Section 66(A) were defined. None in Section 118(A), be it “humiliating” or “abusive” or even “create”, have been defined either.
How to protect women better
Besides its blurred nature, the new amendment has also taken out the gender-specific redress that women activists are fighting for.
Advocate Sandhya said if the government was serious about protecting women, it could have brought the new clause under Section 119 of the Kerala Police Act. This section deals solely with punishment for atrocities against women.
“If it happened that way, the police could still have taken suo motu action against women haters and at the same time curb the scope for misuse as the section would be dealing only with attacks against women,” Sandhya said.
Mohan Gopal, too, felt that the law should have something specific to deal with hate crimes and hate speech against women, just the way the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act deals with crimes against the marginalised communities.