The CPIM Government in Kerala recently came under fire regarding a new section added to the Kerala Police Act. This empowered police officers to take action against persons on the basis of media posts. Though it seems to have been brought in to curb online spread of hate speech and bullying, it gave excessive powers to the police and wide scope for interpretation. Amid great backlash Pinarayi Vijayan stated that the law will be put on hold, though not repealed.
Background of the Police Act Amendment
On November 21st, the ordinance was promulgated by the Kerala State Governor. It added a new section (118 A.) meant to curb online harassment. It reads:
“118 A. Punishment for making, expressing, publishing or disseminating any matter which is threatening, abusive, humiliating or defamatory. ─ Whoever makes, expresses, publishes or disseminates through any kind of mode of communication, any matter or subject for threatening, abusing, humiliating or defaming a person or class of persons, knowing it to be false and that causes injury to the mind, reputation or property of such person or class of persons or any other person in whom they have interest shall on conviction, be punished with imprisonment for a term which may extend to three years or with fine which may extend to ten thousand rupees or with both.”
Vijayan stated that his Government decided to introduce this laws after repeated complaints of social media being misused. In particular, they had received complaints from women and children who were being harassed. However, as the Wire pointed out there already exist laws which tackle the same.
“There is no need for any misplaced concern in this matter. We all can see a lot of abuse of social media to tarnish and assault individuals. This law is not to curtail the freedom of expression. But to control the cyber assault. Even the media persons have asked for a law. The step is based on all these factors”
But after continued backlash from LDF-supporters and opposition, the CPIM decided to not implement the amended Kerala Police Act. Pinarayi Vijayan wrote on twitter about rethinking the Act while also tackling key issues of cyber bullying, fake news and hate speech:
As a society, it is our responsibility to ensure that the dignity of the individual is not violated. We must also acknowledge that cyber bullying & hate speech are serious problems. Let's ensure that our digital and social spaces are safe spaces for all.— Pinarayi Vijayan (@vijayanpinarayi) November 23, 2020
Opposition leader Ramesh Chennithala, however, called this a “bluff” and demanded that the amendment to the Police Act be repealed. However, many praised the CPIM Government for listening to public opinion and taking action swiftly.
Police brutality in Kerala
Regardless of the party in power, police brutality has been a continued issue in Kerala. According to NHRC data released in February of this year, cases of police brutality of people in custody is worse in Kerala than in Chhattisgarh, Bihar, Chhattisgarh, Punjab, and Jharkhand when it comes to police brutality on people under custody. In 2018, the number of custodial deaths in Kerala saw a hundred percent rise.
This disproportionately targets Muslims and Bahujans; for instance, in September, two Muslim youth accused the police of brutal custodial torture as well as being subject to communal slurs. Another Adivasi leader was stripped naked in custody while seeking an audience with Pinarayi Vijayan in 2018. Most famously, in the “Muthanga incident” of 2003, police fired 18 rounds and killed between 5-15 Adivasis protesting after members of their community died by starvation.
Kerala State Human Rights commission former chairman Justice J B Koshy said that during his tenure as Chairman police misused their powers, and sometimes would record arrests after illegally detaining them in jail for a few days in order to torture them. Dr H. Abdul Azeez, who was the Head of Department (Law) at Kerala Police Academy, reported high cases of custodial torture including sexual violence, false implications, and illegal detention in 2014. According to the study, more than 60% of police did not produce the arrestees within 24 hours and in a shocking 96.06% of cases, police did not inform arrestees about their rights to consult a lawyer. In 78% of cases, the police also did not inform friends or relatives about their venue of detention.
Though it has criticised the Congress-led UDF’s inability to curb police brutality, the CPIM Government set a dangerous precedent by giving excessive powers to the Kerala police, who could easily use and manipulate it as they please.
Legal Challenges Raised against the Police Act Amendment
Though Pinarayi Vijayan assured that the new section will not be implemented, petitioners continued with the legal challenges they raised.
Bar and Bench provided an overview of the major grounds the petitioners raised:
1. Provisions are vaguely worded: the terms used in the provisions- such as “humiliating” are open to subjective interpretation. One petition raised the question of what defines an “injury to the mind.”
2. Dresses a private wrong as a criminal act: The provisions are cognizable, meaning police officers can arrest people without a warrant. The petitioners write that wrongs committed by one person upon another (such as defamation, intimidation, etc.) are already penalised by the Indian Penal Code and are, importantly, non-cognizable.
3. Violates Article 19(1)(a): All petitioners challenged Section 118A for violating Article 19(1)(a) that guarantees freedom of speech with reasonable restrictions. In Shreya Singhal v. Union of India the SC declared that speech that can be considered an “insult, inconvenience or nuisance” can’t be considered a reasonable restriction.
4. Resurrection of Section 66A of the Information Technology Act, 2000: Comparisons were drawn to the draconian Act with regards to the vagueness and similarities of the provisions. The act was struck down by the SC and the Kerala Government to admitted that they introduced the legislation as a replacement, defying SC judgement. But the CPIM’s own leader P. Rajeev had argued in favour of repealing this in the Rajya Sabha.
5. Outside the scope of the legislation: The Kerala Police Act seeks to regulate and govern the police force in the State. Penalising a private offence in the Act goes beyond the legislative’s scope.
While the issues of fake news and targeted harassment of minorities, marginalised communities and women online need to be targeted, the CPIM needs to also tackle the issue of police harassment and not give them excessive powers.