Allegedly, it also stood against the precedent made by the Shreya Singhal judgment of 2015. Moreover, although it got the governor’s assent, it never saw the light of the day. This amendment was withdrawn by the government of Kerala before it could be implemented. Hence, the amendment to the Act was challenged in the High Court.
The High Court listened to the matter in Shibu Baby John vs the State of Kerala. Before adjourning the matter for three weeks passed an order was passed by the Court. This stopped any form of coercive action or suo motu registration of FIR for the time when the case was being heard.
What is this Amendment?
The Chief Minister of Kerala, Pinarayi Vijayan said that there has been an increase in the cases of cyberattacks against women and children. Since the abolition of Section 66 A of the IT Act and section 118(d) of the Kerala Police Act, there was no provision for cyber defamation. To fulfil this need, an amendment was passed by the government. This amendment added 118(a) to the Kerala Police Act. This section criminalized expressing, publishing, or disseminating which is threatening, abusive, humiliating, or defamatory. As per the above-stated section, a punishment of imprisonment for a term of a maximum of 3 years or a fine up to 10 thousand rupees or both is prescribed.
The section criminalizes sharing of any matter which may be threatening, abusing, humiliating, or defaming against any person or class of persons. The person doing such an act must know that the matter is false and that it may cause injury to the mind, reputation, or property of such person. Sharing of such matter is criminal by any mode of communication. FIR can be registered against the person even by the people who may have an interest in conviction.
This amendment raised alarms around various groups that fight for the protection of democracy and the rights of the people. It so because this amendment gives a wide range of power to the police. They can take Suo Moto cognizance of the cases and register FIR against any person. This law covers all the mediums of communication. So, this act also covers all the conversation which happen on the internet. This removes the barriers of judicial territory. A case can be filed against any person residing over the world.
New Amendment and Fundamental Rights
Indian constitution guarantees freedom of expression and speech. This right has been given under article 19 of the constitution. The Indian constitution ensures that India stays a democratic nation. This gives every Indian a right to descent. Every person has the right to differ not only from each other but from all those in power. He has the right to propagate whatever he believes in until he is violating any law of the nation or is encouraging strife.
The preamble of the Indian Constitution promises every person the liberty of thought, expression, belief, faith, and worship. Justice Deepak Gupta in one of his speeches said that ” These three freedoms are vehicles through which dissent can be expressed.” He went on to say that the right to freedom of opinion and conscience must include the right to disagree. The right to take another point of view along with the previously mentioned rights are inherited in every citizen of the country.
A very famous saying goes that “absolute power leads to anarchy“. Giving power to the police for taking suo motu cognizance and registering FIR under the same will give huge chances of exploitation of the law. Any sort of objection or dissent will be stopped by the use of force by the government using the law. This amendment will open doorways for the police to silence people, to violate their rights. As the past trends have been, India’s ranking in the global press freedom index has been falling. Even the rank in countries that are unsafe for a journalist, India is amongst the top. This shows a disturbing pattern in the violation of the rights of the citizens. This amendment also shreds the Shreya Singhal judgment to bits and pieces.
The Decision in Shreya Singhal
A few years back, a girl was arrested for posting on Facebook about the shutdown of Mumbai due to the death of a politician. Another woman who likes the post was arrested, meanwhile, a man who commented on the post was arrested from Pondicherry. By the time, a petition was filed by Shreya Singhal, as per the National Crime Records Bureau, 2042 people were arrested under Section 66A of the Information Technology Act, 2000. This section made the dissemination of some type of information using a computer resource outside the protection of the right to freedom of expression. This information can be intended to cause annoyance, inconvenience, or insult. This was punishable by a term of a maximum of 3 years along with a fine.
The Supreme Court held that the law failed to do what it wanted to. The law fails to protect public order. The law does not discriminate between the dissemination of messages between two individuals and between masses. In the earlier case, there is no chance of disruption of public order but it may happen in the latter case. The Court also said that “the mere causing of annoyance, inconvenience, danger, etc., or being grossly offensive or having a menacing character are not offenses under the Penal Code at all.”
The Court relied on US precedent for the test of arbitrary and unreasonableness. The Court said that there should be a reasonable standard to define guilt as a section that is creating something an offense, and where guidance is not clear to either law-abiding citizens or authorities and Courts, it is vague. Any vague law must be struck down as they are arbitrary and unreasonable. Along with this, the Court also struck down section 118 D of the Kerala Police Act which was read along with section 66A of the IT act.
Indian Criminal Law and Cyberbullying
The Indian penal code provides a lot of sections that are of great use when it comes to protecting one against cyberbullying. The first one is the section 354D of the Indian penal code. This section criminalizes cyberstalking. This section talks about stalking, attempting, or repeated contact with women despite a clear indication of disinterest by such a woman. Subclause II of section 354 D covers online stalking. It includes:
- Messaging or threatening to message obscene material
- Copying someone’s identity to harass others
- Checking the location of anyone using illegal methods
- Uploading obscene pictures
- Posting of derogatory material with an intention to harm or harass someone.
Then there is section 509 of the IPC. It covers Word, gesture, or act intended to insult the modesty of a woman. It talks about using words, sounds, gesture, or exhibition of any object which is done with the intention that women watch or listen to it. The intention should be to insult the modesty of any woman. Meanwhile, the POSCO act has provisions for dealing with cases of online sexual harassment at the workplace.
But there is no specific place where cyberbullying has been defined. But act deals with online bullying. They are the Indian Penal code, POSCO, and the Information Technology Act. Section 66E of the IT act deals with a breach of the privacy of any person.
The rights of the Indian citizens have been under constant attack from the various governments at all times. The most attacked right has been freedom of expression. Everybody is happy until someone is speaking against them. 24 media personals have been under arrest for just doing their jobs. But one cannot ignore how much people are harassed on a daily basis on the internet; thousands of women are harassed, lewd comments are passed, abuses are hurled towards them. Moreover, the present law has not proved to be useful. But, that doesn’t mean that India creates laws that can easily be misused to silence the voice of the people who are being critical of the government.
It has been no secret that in the recent past, the left democratic government of Kerala has faced stiff review from the media. People saw this as a moment an attempt of the government trying to pause any such future instances. This law leaves many open loops which if not closed will cause a lot of trouble to the common people. This law has rightly been withdrawn by the government of Kerala.
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