The Kerala government could soon be able to penalise or imprison someone not just for posting abusive or defamatory content, but for even circulating it on social media. The state cabinet on Wednesday decided to bring in an ordinance to amend Kerala’s Police Act, under which people posting, publishing or circulating such content on social media can be jailed for upto five years, and fined up to ₹10,000. The state government’s argument is that this change has become necessary because of the rise in crime on social media, however, civil society activists fear that this could have a chilling effect on online speech.

The Kerala Cabinet’s statement has been issued in Malayalam. Per an English translation by The News Minute, the Cabinet seems to be signalling that even those who aren’t direct creators of such objectionable content can be held legally liable for it. The key word here is “propagate” (or “circulate”, according to other translations) — for instance, even the act of liking a Facebook post, or retweeting can be construed as circulation or propagation.

“Anyone who produces content, publishes or propagates it through any means of communication with an intention to threaten, insult or harm the reputation of an individual, they will be liable to receive a five-year sentence, Rs 10,000 as fine, or both” — Kerala Cabinet’s proposed amendment to the Police Act (English translation)

The proposed change — planned as the addition of a new Section 118-A to the Act — is quite similar to provisions in the Section 66-A of the Information Technology Act, 2000 and the Section 118(d) of the Kerala Police Act, both of which were struck down by the Supreme Court in a landmark judgement from 2015. The court had found both these sections of the law as violative of the right to freedom of expression. The Kerala government has claimed that the vacuum left behind by these two sections has left the state administration and police toothless against cyber abuse, hence necessitating the need for Section 118-A.

Doing this for women’s safety, says govt

The government has said that internet platforms have been used to commit crimes against women. It claimed that the existing legal provisions are inadequate to prevent and prosecute these crimes.

The government claimed it is acting on the directions of the Kerala High Court, which in May 2020, had asked it to enact a law to curtail abuse on social media. The court had been hearing a case against the anchor of an online news channel, who had allegedly posted abusive comments. It had noted that some of the “abusive and unparliamentary” comments may not fall under the purview of Section 67 of the IT Act, and told the government to “wake up” and enact appropriate law to curtail the “social media war”.

Recent ‘sexist’ YouTuber case could be real reason: However, the main impetus behind the move could be the recent case of a Vijay P Nair, who was accused of posting sexually explicit comments on his YouTube channel. Women’s activists claimed they had complained against Nair, only to be ignored by the police. In September, three women’s activists attacked Nair at his home, pouring black oil over his face. The three women were booked for non-bailable offences for attack, leading to public outrage against the government. Soon after, the government relented and directed the Kerala police to book Nair for a non-bailable offence.

Current legal provisions aren’t enough to address social media misuse

The state government has claimed that since the outbreak of COVID-19, there has been an increase in misinformation and hate speech on social media. However, the existing legal framework has led to a situation wherein the police aren’t able to deal with these crimes effectively, it said.

ES Bijumon, Additional Superintendent of Police and head of Kerala Police’s High Tech Crime cell, agreed with this view. Speaking to MediaNama, he said that there has been a demand for special legislation on social media misuse for many years, especially from women’s groups.

“There has been a demand for special legislation on social media misuse for many years, especially from women’s groups. After Section 66-A of the IT Act and Section 118(d) of the Kerala Police Act were struck down in 2015, people have been unable to come forward to file cases against cyberstalking, cyberbullying and cyberlynching. The people are not ready to come forward [to file cases] because there are no clear-cut definitions for these things” — ES Bijumon, head of Kerala Police’s High Tech Crime cell. (Emphasis added)

Bijumon said that the Kerala police is currently using IPC sections to book such cases, but these offences are bailable and non-cognizable. One of these, he said, is IPC Section 509, which deals with “insult to the modesty” of women, which doesn’t directly relate to cyber offences. Other sections used for these kinds of offences include Section 499 and Section 500 of the IPC which deal with defamation and the penalities it can result in, but Bijumon said the police cannot register cases directly here either. These are only complaint cases. The victim or complainant can seek remedy through courts, not directly through police, he said.

Bijumon said the amended law will allow police to take action without waiting for courts to sanction it. This has excessive delays in processing cyber abuse cases, a problem that will likely be solved now. He added that the new legal provisions will be welcomed by women’s groups, since women are more often than not the victims of cyber crimes of this sort.

“Sometimes we have to approach courts for getting sanction under non-cognizable offences. Once [these offences] are made cognizable, and we have clear-cut definitions of these offences, we can take action without delay” — ES Bijumon, head of Kerala Police’s High Tech Crime cell

State women’s commission chair welcomes move, wants Centre to replicate it

MC Josephine, chairperson of the Kerala Women’s Commission, hailed the state government’s decision “wholeheartedly”. Speaking to MediaNama, she said abuse of women on social media has increased greatly in Kerala in the recent past. “The existing laws of cyber cases are very weak. The women of Kerala have expressed their views on this subject continuously […] Once the ordinance is promulgated, surely the women of Kerala will be very happy,” she said.

Josephine said the central government should take a leaf out of Kerala’s notebook and implement a similar nationwide law, to prevent abuse of women on social media.

Criticism: Possible use to kill dissent online

The details of the proposed Section 118-A are still unknown, however the Cabinet announcement has made it clear that it will have a wide ambit. For these reasons, it sounds similar to the struck-down Sections 66-A and Section 118(d). Observers have noted that it could have impacts on the people’s freedom of speech. Some have noted that there are already legal provisions to deal with cyber offences against women. For instance, advocate Kaleeshwaram Raj told PTI that 354, 354A, 354B, 354C and 354D of the IPC have “strong provisions” for the same.

Anivar A. Aravind, a public interest technologist, has been critical of the Kerala government’s move. Speaking to MediaNama, he said that the plan to amend the Kerala Police Act for a generic law does not sound promising. He wasn’t convinced of justification that it would help women’s safety. Instead, he felt the government is trying to bring back the “draconian” provisions of Section 66-A and Section 118(d) rather than address specific women’s demands.

Aravind asked whether women’s groups were widely consulted before the amendment plans were made. Before hurried law-making, he said, the government needs to ensure women’s groups’ involvement in police training on matters related to online defamation. He also asked on plugging the gaps on the mechanism to file FIRs in defamation cases, and find the root cause of the problem.

Nikhil Pahwa, editor of MediaNama, adds: “The idea that this would cover both people who publish and propagate certain content means that it would apply to both both the creator of the content, as well as shares, retweets and probably even likes, since likes increase the propensity of content to spread. Remember that in case of 66A, when those two girls were arrested, one had posted a Facebook update, and another had liked it.

The Supreme Court, in striking down 66A and Section 118(d) of the Kerala Police Act, had held speech to a very high standard: that advocacy is fine, but incitement to violence is not. At a time when most democracies in the world have decriminalised defamation, an amendment that threatens imprisonment of up to 5 years for insults or harm to the reputation of an individual, is definitely uncalled for. I would doubt that this will survive constitutional scrutiny of the Supreme Court. The Kerala government would do well to not impose such draconian considerations on citizens, and learn from the mistakes they made with Section 118(d).”

*Update (8:52 PM, October 23): Story updated to add an English translation of the Kerala Cabinet’s decision. Added explanation to lede on how “circulation” or “propagation” of abusive content on social media would be illegal now.

Correction (November 23): An incorrect link to a PTI story has been corrected. The error is regretted.