Update: Shortly after this article’s publication, the Kerala government reversed its decision. You can read about the withdrawal of the ordinance here.
The governor of Kerala on Saturday passed an ordinance to criminalise defamation online, with jail time and/or fines for offenders who publish or disseminate such content. The state government had announced its intent to do this last month. The bilingual ordinance, published in the Kerala Gazette, amends the state’s Police Act to make posting defamatory or “humiliating” content online an offence that could attract three years of imprisonment and/or a ₹10,000 fine. The move was criticised by civil society as an attack on freedom of expression, and LiveLaw reports that two challenges to the ordinance, will be heard as soon as Tuesday.
“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.” — The Kerala Police (Amendment) Ordinance, 2020
While the ordinance seems to be a result of a high-profile case involving a YouTuber’s sexist comments made recently, its overbroad language could result in things like satire — and the mere sharing or ‘liking’ of such content — being subject to criminal prosecution. “Humiliating” content, for instance, is the bread and butter of satire targeted at public officials, but penalising it may not be a justifiable restriction on freedom of expression. The constitutional challenges to the ordinance may determine its ultimate fate. The state government has indicated that the law has been amended to tackle online abuse, and the chair of the Kerala Women’s Commission endorsed the ordinance.
The language the legislation deploys indicates that it is designed as a replacement to Section 66A of the IT Act and a previous amendment to Kerala’s Police Act, Section 118D. Those were struck down by the Supreme Court in 2015. As such, it’s unclear how this ordinance will survive in the courts. Benches with the Kerala High Court’s Chief Justice, who will be hearing challenges to the ordinance, have turned away what they deemed as violations of free speech in the past.
Civil society has called the ordinance’s language “draconian”, and advocate Kaleeshwaram Raj told the Press Trust of India that sections 354, 354A, 354B, 354C and 354D of the Indian Penal Code were sufficient to deal with the kind of cyberbullying and online crime that the state government is trying to act against.