Section 118A of the Kerala Police Act – An attack on Freedom of Speech

 

Freedom to free speech and expression is a fundamental right guaranteed under Article 19 of the Indian Constitution. It is the most precious and natural right and thus is considered as the backbone of Part III of the Constitution, but this right is not absolute and comes with certain limits which are called ‘reasonable restrictions’.

Recently, there has been an amendment brought in the Kerala Police Act, 2011 which inserted Section 118A, is in the news and is being criticized by the people as well as the opposition as being violative of Article 19.

What is Section 118A?

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The newly inserted Section 118A of the Kerala Police Act, 2011 states that anyone who creates or sends offensive messages to offend or threaten another person via any means of communication will be punished with a fine of Rs. 10,000/- along with imprisonment for five years.

Also, the police can slap criminal charges by interpreting any kind of communication through any medium as defamatory. Even ‘injury to the mind’ can be a sufficient reason for the police to slap criminal charges against the other person which may stipulate punishment for a term which may extend to three years and a fine which may extend to Rs 10,000/-. The police officials can also take a suo moto action even if the complaint is not filed by the alleged victim.

How is it Violative of Article 19?

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The Section was introduced with whole and sole aim which was to prevent cyber-bullying whose victims were mostly women and children and was thus signed by the Governor of Kerala Mr. Arif Muhammad Khan But the amendment which inserted this section has received widespread opposition from the people of Kerala as well as the opposition parties.

The Section 118A introduced will provide more power to the police and also will curtail the freedom of the press since the law has been stretched to such a vast extent that every communication or publication made would be subject to interpretation by the police and the power to determine whether such communication or publication caused injury to the mind of a particular person has also been left upon the wisdom of the police officials.

Also, the section 118A introduced is vaguely worded, and similarities have been drawn upon it with Section 66A of the Information Technology Act, 2000 which was struck down by the Supreme Court in the case of Shreya Singhal v. Union of India[AIR 2015 SC 1523]. The petitioners, in the case of Shibu baby John and Ors. v. State of Kerala [WP (c) No. 25793/2020] contended this in Kerala High Court. Thus, through this case, the Kerala Government, for the time being, has withdrawn the newly introduced section and has told the Kerala High Court that the ordinance will not be implemented and is subject to detailed discussion in the Kerala legislative assembly.

Analysis of Article 19- Right to Freedom

The Right to Freedom is a Fundamental Right that is enshrined under Article 19 of the Indian Constitution and provides for several freedoms that are only available to citizens of India and are as follows:

  1. Freedom of Speech and Expression
  2. Freedom of Assembly
  3. Freedom to form associations or unions or cooperative societies
  4. Freedom of Movement
  5. Freedom to reside and settle
  6. Freedom to profession, trade, business, occupation.

All these freedoms are mentioned under Article 19 (1). The freedoms, earlier, also comprised of Freedom to acquire, hold or dispose of property which was deleted by the 44th Amendment Act, 1976 and also the term ‘Cooperative Societies’ was added by the 97th Amendment Act, 2011 but as discussed above, this right is not absolute and is subject to reasonable restrictions which have been enshrined in the Article 19 (2) to 19 (6).

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Talking about the Freedom of Speech and Expression, they are stated under Article 19 (1) (a) and consists of 3 rights:

  1. Right to receive information
  2. Right to express their idea
  3. Right to keep any information or communication a secret.

Now, a question comes to mind as to what does the term “Speech and Expression” means? To answer this, the term Speech and Expression includes:

  1. Words of Mouth
  2. Writing
  3. Printing
  4. Pictures, films, movies, etc.

Along with the rights and freedoms mentioned, Article 19 (1) (a) also includes the right to remain silent and the freedom of the press. The term “expression” includes publication, and if something is published then it can be communicated via circulation, and without circulation, the publication has no value and thus freedom of speech and expression includes the freedom of the press.

The right to remain silent was incorporated in Article 19 (1) (a) by the case of Bijoe Emmanuel v. State of Kerala [1986 3 SCC 615] where the court laid down that no person can be forced to sing the national anthem if he or she has a genuine objection based on religious faith. It was held that the expulsion of children for not singing the national anthem was not in violation of Article 19 (1) (a) since they did not commit any offense under the Prevention of Insult to National Honour Act, 1971 as they stood respectfully when it was being sung.

Conclusion

In my opinion, the Ordinance brought forward by the Government of Kerala is not needed since as per the judgment of Sreeja Prasad v. State of Kerala case, 2020, there are already several laws enacted to curb the offense of cyberbullying, and instead of bringing such hurried and poorly drafted amendments, the Government of Kerala should focus on making the police more vigilant since the state must maintain public order and maintain public order, the culprits indulging in such offenses of cyberbullying should be booked immediately, and for that, the police have to be more strict and vigilant.


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