To put it simply, the latest piece of law to be incorporated into the Kerala Police Act is a brazen assault on the idea of free speech and a drastic example of state overreach without jurisdiction. Section 118A, introduced by way of amending the existing law through an ordinance, makes any form of communication that is deemed defamatory or insulting a cognisable offence, punishable by a fine or imprisonment or both.
The Left Front government claimed it was bringing in a much-needed legal provision to deal with the rising number of social media crimes, especially against women and children. But in reality, the scope of its law goes much beyond the realm of social media to include “any means of communication”. If wielded without caution, or with ill intent, it can turn into a potent tool to gag the media, stifle dissent, silence legitimate criticism and curtail freedom of expression. And what makes the government’s intention suspect is the timing. It is introduced when an election is underway and another is just months away, and at a time when the government is facing the heat of investigations being carried out by multiple central agencies.
After facing scathing criticism, even from within the ruling front and the CPM’s national leadership, the government has come around to the view that the new law needs a relook and has decided not to enforce it for now. A sensible move, but the right thing to do would be to rescind it entirely so as to avoid any confusion. For such a law, in any form, will remain vulnerable to misuse, and with the ordinance being signed and notified, it’s already a reality. Moreover, it is unlikely to survive judicial scrutiny, given that the Supreme Court had in 2015 struck down two similar provisions that dealt with “offensive comments”—Section 66A of the IT Act and Section 118 (d) of the Kerala Police Act—for being violative of Article 19.
What makes the new law more dangerous is it empowers police to suo motu interpret and deal with “offensive” communication and make arrests without a warrant. It’s clear the government turned the necessity to deal with social media offences into an opportunity to muzzle criticism and burnt its fingers in the process. The only way to redeem itself is to drop the law for once and all.