Kerala’s Draconian Ordinance against freedom of speech and expression

The Kerala government issued a draconian Ordinance on November 21, 2020, making it a cognizable crime to “create”, as well as to publish or propagate any “false” content or material in any medium of communication that would do any “harm” to the mind, reputation or property of any person or section of people or to any other person in whom such person or section of people have an interest. The cognizable crime is punishable with imprisonment for up to three years or a fine up to Rs.10,000, or both.

This proposal of the Kerala Cabinet vests arbitrary and unbounded power in the police to charge and arrest people for virtually any critical material against virtually anyone. It would undoubtedly have a chilling effect on free speech. It may be the first time that “creativity”is criminalised (“Shrishti” in the Malayalam version of the Ordinance). Whereas the

concept of an “attempt” to commit a crime has a well-defined body of jurisprudence, by criminalising “creation”, the Ordinance introduces a new and dangerous expansion of criminal liability whose boundaries are unknown — even mere thinking using digital tools for assistance would be covered.

An October 2020 Kerala government press note said that the Cabinet decision to promulgate the Ordinance was based on the view that cyber attacks are a serious threat to privacy and private life and existing laws are insufficient to tackle such cyber crimes after Section 66A of

the IT Act and Section 118(D) of the Kerala Police Act had been struck down by the Supreme Court. The press note makes it clear that the Government was responding to the May 2020 observations of the Kerala High Court in Sreeja Prasad vs. State of Kerala that “the State has to

wake up and legislate appropriate enactments to curtail the social media war”. It also appears to be a response to recent vulgar and abusive attacks in the social media against eminent and respected women in Kerala, with the author being confronted by women activists and made to apologise for his anti-social actions.

The Ordinance is, in essence, identical to two provisions of law that had been struck down in by the Supreme Court as unconstitutional in the 2015 Shreya Shingal case as violating our freedom of speech and expression under Article 19(1)(a) of the Constitution: Section 118(d) of

the Kerala Police Act and Section 66A of the IT Act.

Section 118(d) of the Kerala Police Act had made it a criminal offence to “cause annoyance to any person in an indecent manner by statements or verbal or comments or telephone calls or calls of any type or by chasing or sending messages or mails by any means”. Section 66-A of

the IT Act criminalized the sending “by means of a computer resource or a communication device (a) any information that is grossly offensive or has menacing character; (b) any information which [the sender] knows to be false..for the purpose of causing annoyance,

inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device, or (c) any electronic mail or electronic mail message for the purpose of causing annoyance or

inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages.”

The Supreme Court had struck these two provisions down in 2015 as unconstitutional on the grounds that they were “vague and over-broad” and that they are “cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the

mores of the day would be caught within its net.” The Supreme Court said that “such is the reach of the Section [that] …if it is to withstand the test of constitutionality, the chilling effect on free speech would be total. The Court also found that “…Every expression used is nebulous in

meaning. What may be offensive to one may not be offensive to another. What may cause annoyance or inconvenience to one may not cause annoyance or inconvenience to another.

There is no demarcating line conveyed by any of these expressions and that is what renders the Section unconstitutionally vague.” The Court noted that “None of the expressions used in Section 66A [and Section 118(d)] are defined. Even "criminal intimidation" is not defined.” The Court further held that “The possibility of Section 66A being applied for purposes

not sanctioned by the Constitution cannot be ruled out.” The Court therefore held the two provisions to be “wholly unconstitutional and void.”

The Ordinance suffers from the same deficiencies as Section 66A of the IT Act and Section 18(d) of the Kerala Police Act that rendered them unconstitutional. The Ordinance is therefore unconstitutional.

The Ordinance could be misused against women — men who attack women could file complaints against women claiming that the reaction of the women to the abuse has “harmed” the men mentally as well as their reputation or property. This complaint could also be made by any person in whom the male attacker has an interest.

Numerous provisions in our current law address many of the concerns identified by the Kerala Cabinet. Section 119(1) of the Kerala Police Act creates criminal liability for any person who (a) performs, in public places, any sexual gestures or acts degrading the dignity of women; or (b) takes photographs or records videos or propagates them at any place in a manner affecting the reasonable privacy of women. Section 67 of The Information Technology Act, 2000 criminalizes the publication or transmission of in electronic form of any material which is lascivious or appeals to the prurient interest or tends to deprave and corrupt persons. Section 11 of the Protection of Children against Sexual Offences Act, 2012 (Sexual Harassment) and at least 10 IPC provisions also address some of the concerns expressed by the Cabinet.

On the other hand, there are three significant gaps in current laws which are not addressed by the Ordinance -- but should have been.

First, the absence of adequate legislative protection of women from attacks on their gender identity (hate crimes/hate speech) corresponding, for example, to Section3 (x) of the SC,ST Atrocities Act which protects against hate speech and hate crimes arising from caste prejudice.

Section 3(x) creates criminal liability for any person who, not being a member of the SC, ST community, “intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view”. Second, the narrow and outmoded definition of Section 509 (“Word, gesture or act intended to insult the modesty of a woman). Third, the inability to prosecute the attempt to commit offences not punishable by imprisonment.

To address these gaps in the law and effectively address the concern of women’s groups Kerala should have added a new hate speech provision to the Kerala Police Act as a cognizable and non-bailable offence on the lines of Section3 (x) of the SC,ST Prevention of Atrocities Act as follows:

"Whoever, not being a woman, intentionally insults or intimidates a woman with intent to humiliate her, through whatever means including electronic communications, in any place within public view, including the internet and, in particular, social media, shall be punished with

imprisonment which may extend to xxx years or with fine not exceeding xxx rupees or with both. Any action that is an attempt to commit the above punishment may also be made punishable by half the punishment."

The Ordinance is hasty and ill-considered. A thorough study should also be made of the laws and enforcement mechanisms for women who are victims of gender-based hate crimes and hate speech and necessary remedial actions may be taken.

(The author is a former director, National Judicial Academy; former VC, National Law School of India University, Bengaluru.)

Editor's note: After opposition from all quarters, the Kerala government has put the ordinance on hold.