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Kerala Police Act -Test of Free Speech

Kerala Police Act -Test of Free Speech

UPSC CSE – SYLLABUS: GENERAL STUDIES-2– Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

Kerala Police Act -Test of Free Speech

The Act:

  • Kerala Governor recently, approved an ordinance promulgated by the LDF governmentin the state for punishing the “making, expressing, publishing or disseminating” of any “matters” which could be constructed “threatening, abusive, humiliating or defamatory”.
  • 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 and for its vagueness.
  • The Section 118 (d) of the Kerala law provided for imprisonment, extending upto three years, of any person convicted for causing “annoyance” to any person “in an indecent manner” by “statements or verbal comments or telephone calls or call of any type or by chasing or sending messages or mail by any means”.
  • In the Shreya Singhal case ruling, the apex court 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…”
  • 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.
  • Section 118A, which was added to Kerala Police Act as part of the amendment cleared by the Governor, provides for a similar punishment on conviction as that of the Section 66A and the Section 118(d) but is not restricted to communication made through a computer resource or a communication device, as it explicitly states “through any kind of mode of communication”, and also is not restricted to annoying someone, like Section 118 (d).

Vague provisions & SC’s Observations :

  • The bench of Justices J. Chelameswar and R.F. Nariman in the ruling about Section 66A had noted that none of the expression used in it are defined – the terms like “threatening, abusing, humiliating or defaming” are not defined in Section 118A either but Section 2 of the Kerala Police Act states that the words and expressions not defined under the said law shall have the meanings as defined in the Indian Penal Code or Code of Criminal Procedure.
  • Out of four actions criminalised under the latest amendment by Kerala, only defamation is clearly defined in the IPC.
  • Quite obviously, 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,” the apex court had held, while holding the provision to be unconstitutionally vague.
  • 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.”

Internet Freedom Foundation on Sunday tweeted that the amendment was “a replicant of the unconstitutional Section 66A” and said it criminalises the online speech by users “under vague expressions and is liable to subjective and arbitrary application. This poses a real threat to freedom of speech and expression”.

POSSIBLE UPSC MAINS EXAMINATION:

Critically examine the recently amended Kerala Police Act in light of freedom of Speech.