THE DRACONIAN AMENDMENT ACT: AN ATTACK ON OUR FREEDOM OF SPEECH

“There is Freedom of Speech, but I cannot guarantee Freedom after Speech” - IDI AMIN With regards to the freedom of speech and expression in India, the previous few weeks have been the most appalling in recent memory. The constitution of India renders the citizens, Fundamental Rights. And one of the most important right is the Freedom of Speech and Expression. It occupies a significant position in the segment among all the other freedoms and is in all actuality, the ability to speak freely which is the mother of all the other freedoms. Democracy cannot exist without the ‘Freedom of Speech and Expression’. There is no denying the fact that owing to its nature, this particular freedom has never been free from perils. The governor of Kerala, Arif Mohammad Khan signing an ordinance on November 21, amending The Kerala Police (Amendment) Ordinance, 2020 is one such occurring in recency. It boasts of amending the southern states’ Police Act to punish those found guilty of spreading content through press, television, including social media, or by any means which is derogatory. The ordinance has introduced a new provision, S. 118-A to the act. This section deals with the cyber-attacks against women and children. Punishment for making, publishing, insulting, expressing disseminating any matter which is threatening, abusive, defamatory, and humiliating: 3 years imprisonment or a fine up to Rs 10,000 or both. Furthermore, the police can initiate criminal proceedings on anyone for any kind of communication through any medium which is defamatory. Not only these police can impose charges not just based on a petition of the victim, but also on anyone “in whom they have an interest”. A month ago, the Kerala cabinet had intimated this suggestion to the governor. It had expressed in the official statement that the law is to cater to and address the increasing incidence of crimes through web-based media. The current law is toothless to prosecute such wrongdoings, particularly after the Supreme Court struck down Section 66A of The Information Technology Act and Section 118 (d) of the Kerala Police Act. The Kerala government’s decision amending the act to curb cyberattacks against women and children has evoked a mixed response from among the citizenry with many cautioning that the new law could adversely affect the freedom of expression Art.19(1)(a). After this advancement, a massive controversy has erupted in different parts of the state where activists and ideological groups have not missed an opportunity to criticize this move, saying that it will adversely affect the momentous freedom of speech and expression. BJP will be carrying this issue to the high court to revoke it. According to the revoked Section 118(d) of the same act (struck down by the Supreme Court), any individual who creates inconvenience to any person in an improper manner by verbal or remarks or calls or any kind of messages or emails or statements sending by any means will be punishable with imprisonment for a term which may extend to three years or with fine not exceeding 10,000 or both. This ordinance has the potential to become a tool of great abuse against the laity and it is an attempt to sabotage the free-media. It gives huge powers to the police. Any Tom, Dick, and Harry could be blamed for humiliating someone and s/he can be prosecuted under this provision. Furthermore, since the new law empowers the police to make a move sou moto, it expands the chances of abuse and arbitrariness. According to this amendment, Defamation is now a cognizable offence in which the police officer as per the law can arrest the convict without a warrant, and can start investigating without the sanction of the court. The opposition parties and activists naming it “Draconian” and an” immediate assault on free speech” requested for the withdrawal of the amendment. “This is Draconian and bound to be abused to silence dissent, “said Prashant Bhushan, public interest lawyer, and activist. It can be unequivocally observed that the new S. 118A attempts to bring back the illegal and banished S. 118 (d) of the Kerala Police Act or S. 66 A of the Information Technology from exile, through the backdoor, because in Shreya Singhal judgment of the Supreme Court (2015), Justices Rohinton F. Nariman and J. Chelameswar had held that section 118 (d) disregarded Article 19(1)(a) of the Constitution of India. The offense of ‘causing inconvenience in an indiscreet manner’ experiences a similar sort of ambiguity and overbreadth, the court had noticed while striking down this provision on the ground of administrative incompetence. The punishment proposed for annoying an indecent manner in essence and substance would fall inside entry 1, List III which talks about criminal law and would be within the competence of the State legislature in any case. Just like every coin has two sides, ergo every new provision also ropes in supporters as well as dissenters. The amendment in Kerala Police Act is welcomed by the Kerala State Women’s Commission chief MC Josephine implying that the decision of the government to amend the Police Act to prevent cyber-attacks against women and children will rein in and bring the defaulters who loom at large within the police's net. The government unmuted themselves on the amendment in the light of the fact that recently a gathering of ladies’ activists went rogue. They stood up to a blogger who utilized his YouTube channel to communicate damaging and defamatory remarks against them. The Kerala Government felt that the absence of a ‘strong law’ to prevent online bullying was saddening. 118 A is an immediate assault or attack on the Freedom of Expression. It condemns any ‘matter’ that is ‘Injurious, humiliating, or defamatory” which is fine, yet also targets speech that is ‘undermining’ or ‘uncertain or ambiguous’, a term that is open to abstract translation under the most favorable circumstances. That the state government is looking beyond just shielding ladies and children from online hunters was evident. when the CM said that nobody needs to stress, of course, those who are not practicing impartial journalism need not. On 23.11.2020 came a sigh of relief as the Chief Minister said that section 118 A will not be implemented and will be put on hold. But the Opposition parties (RSP, BJP) have slammed the amendment by moving to the Kerala High Court challenging the Constitutional Validity of section 118A of Kerala Police Act. 'No registration of FIR based on the sec. 118A Ordinance' is being reconsidered, submitted to the government before the High Court. After severe criticism, the Government has put the Kerala Police Act amendment on hold and decided to recommend the Governor to withdraw the ordinance. The Government then disclosed to the High Court that it has chosen to pull down the disputable Amendment. What's the current status? The Governor has signed the ordinance to pull down section 118A.

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