as-kerala-brings-new-gag-law-recalling-sc-rap-on-another-5-years-ago

Context: Governor signed the ordinance seeking an amendment to the Kerala Police Act to control online bullying and virtual abuse of women and children.

More on news:

  • The Kerala cabinet recommended to the Governor the promulgation of the ordinance to insert Section 118 (A) into the Act.
  • While state officials said this would give law enforcers more teeth to prosecute the guilty, media houses said the law could be used to gag them.

About the ordinance:

  • The state government recommendation to amend the police act says that if the government finds any media platform including social media producing, publishing or propagating content that could threaten, insult or harm an individual, they will be punished with a fine of Rs 10,000, imprisonment of five years or both.

Supreme Court judgement 

  • Shreya Singhal case: In 2015, the Supreme Court in a landmark judgment on Section 66A of the IT Act had also struck down a similar provision of the Kerala Police Act for being violative of the right to freedom of speech and expression.
    • SC had said what it has said about Section 66A would directly apply to the provision “as causing annoyance in an indecent manner suffers from the same type of vagueness and overbreadth”
  • A prospective offender of Section 66A and the authorities who are to enforce Section 66A have absolutely no manageable standard by which to book a person for an offence under Section 66A.
  • Concluding that Section 66A takes within its sweep protected speech and speech that is innocent in nature, the court had also said that is liable “therefore to be used in such a way as to have a chilling effect on free speech.”
  • The impugned sections proscribed a range of acts if done via electronic means but did not define what terms like “intimidation”, “menacing”, “chasing”, “persistent” used actually meant.
  • New ordinance contravenes SC Judgment: The new Kerala ordinance appears to suffer from the same deficiency, as it is not clear what precisely would constitute “threatening, abusive, humiliating or defamatory” matter. 
    • The police would be left to exercise its discretions and judges too, in the absence of clarity in the statute, may be likely to go along with the police’s interpretation.

Section 66A criminalised 

  • Sending of any communication, via computer or a communication device, which could be said to be “grossly offensive, 
  • Has menacing character” or false information intended at “causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or will” or 
  • Any electronic mail or email messages intended at “causing annoyance or inconvenience or to deceive or to mislead” the recipient.

What is Article 19?

  • Right to Freedom (Protection of certain rights regarding freedom of speech, etc)

(1) All citizens shall have the right

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India;  

(f) omitted

(g) to practise any profession, or to carry on any occupation, trade or business

Restrictions on Right to Freedom

  • The law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.