Kerala’s attempt to criminalise social media was a deja vu moment for a petitioner who five years ago convinced the Supreme Court to strike down Section 66A of the IT Act. It’s also a cautionary tale in a democracy that works hard to curb the use of the Internet as a medium for free speech and expression
New Delhi: Kerala’s recent attempt to criminalise online speech by amending the Kerala Police Act to mandate a jail term for an “offensive” social-media post comes five years after the Supreme Court struck down section 66A of the Information Technology Act, 2000 (IT Act), and section 118(d) of the Kerala Police Act, 2011 on the grounds that it violated the fundamental right to free speech and expression guaranteed under Article 19(1)(a) of the Indian Constitution.
Kerala’s move is only one of several (here, here and here) by state and central governments to implement laws/rules—and most recently—ordinances to “regulate” the internet, all directed at curbing the use of the internet as a free and accessible media for speech and expression.
My first tryst so to speak with such an act of the government came in 2012, when I returned to India from university and was greeted by the arrest of two girls from Palghar, Maharashtra, not much older than I was at the time. Their crime? Posting and liking something on Facebook in relation to the shutdown of Mumbai following the death of Shiv Sena leader Bal Thackeray.
The girls were arrested under the draconian section 66A of the Information and Technology Act, 2000 (IT Act):
“66A. Punishment for sending offensive messages through communication service, etc.- Any person who sends, by means of a computer resource or a communication device,-
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device; or
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.”
The challenges to section 66A of the IT Act were threefold: it had a chilling effect on free speech; its wording was vague and excessive; and there is no reasonable and intelligent difference between speech on the internet or the virtual world and the “real world”.
One of the petitions tagged with the challenge to the erstwhile section 66A of the IT Act also challenged section 118(d) of the Kerala Police Act, 2011.
“118. Penalty for causing grave violation of public order or danger.- Any person who,-
(d) Causes annoyance to any person in an indecent manner by statements or verbal or comments or telephone calls or calls of any type or by chasing or sending messages or mails by any means; shall, on conviction be punishable with imprisonment for a term which may extend to three years or with fine not exceeding ten thousand rupees or with both.”
On 23 March 2015, the Supreme Court struck down both Section 66A of the IT Act as well as Section 118(d) of the Kerala Police Act on the grounds that it violated the fundamental right to free speech and expression guaranteed under Article 19(1)(a) of the Constitution of India and was an excessive restraint thereto not in consonance with the “reasonable restrictions” as laid down in Article 19(2). The court agreed that Section 66A of the IT Act had a chilling effect on free speech.
The Court further held that there was no reasonable ground or difference between speech contemplated in the “real world” and speech in the “virtual world”. The words used in the erstwhile Sections such as “annoyance, grossly offensive, menacing, inconvenience or danger” were incorrect definitions to criminalise speech on the internet.
The court defended the right to disagree with the majority viewpoint. “In point of fact, Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net,” the judgement said.
In the struggle to provide basic rights such as shelter, food and security, socio-political rights such as freedom of speech are often overlooked. But the protection of the people’s right to know, to disseminate information, to voice their opinions, to have their say--all form the essence of a democracy.
Five years down the line, whilst still in the middle of a pandemic, with self-imposed restrictions on going out and government directives promoting work from home, the Kerala Government sought to turn back time by introducing by way of an ordinance, a “punishment” for making threatening, abusive, humiliating or defamatory content on the internet”.
From classes and court hearings to meetings and socialising, there is very little today that happens offline. The internet has become the only tool, outlet and connecting thread for billions. It has transcended geopolitical borders and financial boundaries, helping people stay safe and connected.
Yet the Kerala government sought to promulgate the following section in 2020:
“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.”.
My objection to the insertion of the now withdrawn section 118A of the Kerala Police Act is not just on the actual section, but the manner in which it was sought to be implemented, a fews weeks before the Assembly is to convene.
This meant that there would have been no discussion or debate by the opposition on section 118A of the Kerala Police Act. section 66A along with other amendments to the IT Act in 2009 was passed by Parliament in 6 minutes without any debate or discussion.
The misuse of section 66A, during its short lifespan deprived thousands of people of their liberty and rights and in fact, is still being included in many cases. Within 2-3 days, 5 petitions were filed before the Kerala High Court challenging the validity of Section 118 A of the Kerala Police Act.
The fact that the state government withdrew the ordinance almost immediately after the huge public outcry also shows the fact that they themselves were not satisfied with it.
The section itself bears an eerie resemblance to section 66A of the IT and section 118 (d) of the Kerala Police Act. It imposes a vague and onerous restriction on free speech on the internet. The words used in sections 118A of the Kerala Police Act are completely open-ended and undefined and would not even muster the clear and present danger test.
Most of the words used in section 118A are covered by the offences already forming part of and punishable under the Indian Penal Code, 1860. Those would apply equally to the “virtual world” as they do in the “real world”.
The constant threat to free speech is insidious and silent. Section 66A of the IT Act was introduced with the intention of reducing/stopping spam. Governments of all ideological dispositions, have at every level sought to curb criticism and free speech, often creating “examples” of persons who have been arrested to “scare” off any criticism or dissent.
Juxtapose this with countries such as the US and the UK where policy decisions of the government are torn to shred online and on prime-time TV. This is the time when we as citizens are duty bound to stop the incursion on free speech, to be vigilant and to exercise our rights to criticism, dissent and debate, not sit quietly until there is no one left to protect these rights.
(Shreya Singhal is an advocate practising in the Delhi High Court)