The Kerala government has done well to put on hold the retrograde ordinance, which was modelled on the infamous Section 66A of the IT Act and Section 118(d) of the Kerala Police Act itself, both of which the Supreme Court had struck down in 2015 for their “chilling effect’’ on free speech. Under the garb of curbing online abuse of women and children, the ordinance criminalises a wide swathe of speech in any forum. The amended Section 118(a) mandates a three-year jail term for anyone sending offensive, humiliating or threatening messages to others. The offences are as vague and inadequately defined as those struck down by the court for being constitutionally ultra vires and detrimental to free speech. And being vague, they could well be misused. The definition of the offence can even be stretched to include speech on other media, too.
The claim that these stringent provisions are needed to tackle crimes against women and children is questionable. These can be dealt with under existing laws like the Indian Penal Code (IPC) and the POCSO Act. Often, offences of that nature are not even registered and investigated under these laws. The validity of the ordinance is in doubt not only on the constitutional ground of violation of the right to free speech, but also because it is repugnant to existing laws. The offences under it are cognisable while criminal defamation under the IPC is non-cognisable. It empowers a police officer to register an FIR while defamation law calls for a complaint from an aggrieved party. It prescribes a prison term of three years while the IPC prescribes a two-year term. The ordinance, in effect, makes amendments to central laws, which states are not empowered to do.
The ordinance is a blunt weapon that can be used arbitrarily by police, which means the government, against “anyone who expresses, publishes or disseminates ‘false views’ that threaten, abuse, humiliate or defames another person or class of persons causing injury to the mind, reputation or property’’. The government has claimed that it is well-intentioned, but the road to jail for many may also be paved with those intentions. It is unfortunate that the political class, left or right, instinctively reaches for the law’s gun to silence free speech, under pressure sometimes but even otherwise. The Left Front government is under pressure from investigations by many central agencies and may have succumbed to the authoritarian temptation. But it responded to public opinion and followed the CPM central leadership’s view to put a hold on the ordinance. It should drop it altogether.