Mixed response to proposed amendment to Kerala Police Act

The Kerala government had on Wednesday decided to give more teeth to the Police Act by recommending the addition of Section 118-A.

Thiruvananthapuram: The Kerala government's decision to amend the Police Act to curb cyberattacks against women and children, has evoked mixed response with many welcoming it but a few cautioned that if not clearly drafted the new law could have an adverse impact on the freedom of
expression.

The state cabinet had on Wednesday decided to give more teeth to the Act by recommending addition of Section 118-A.

The provision stipulates either imprisonment up to five years or a fine of up to Rs 10,000 or both to those who produce, publish or disseminate content through any means of communication with an intention to intimidate, insult or defame any person.

State Women's Commission chief M C Josephine Thursday welcomed the decision of the government to amend the Police Act to prevent a cyber attack against women and children and said the new law will rein in the cyberbullies.

"We welcome the decision of the state government to amend the law in order to take stringent action against those engaged in cyber assault through social media," she said in a statement.

Josephine said it's the women community which faces the most cyberattacks and these days the complaints are on a rise.

The Supreme Court decision to repeal Section 66-A of the IT Act 2000 and Section 118 (d) of the Kerala Police Act, 2011 on the grounds that it was against freedom of expression, has resulted in the rise in cases of cyber attack.

"But this amendment will rein in such cyberbullies," she said.

Former judge of the Kerala High Court Justice B Kemal Pasha said though he was not aware of the details of the proposed amendments, he felt it was urgently required.

"I feel an amendment is urgently required as through social media, such crimes are rising exponentially.

So an amendment with penal effect is highly necessary to the Police Act and IT Act as hooligans are using social media to abuse persons especially women and children or else people will take law into their own hands," he said.

However, Advocate Kaleeswaram Raj of the Supreme court said the legal validity of the proposed law would depend on its text.

Since there are existing provisions to deal with cyber crimes against women, the government and the legislature should be very careful in introducing new provisions of law, which if not carefully drafted, can have an adverse impact on the freedom of expression, especially that of the media, he
added.

"I have doubt regarding its legal validity, which of course would depend upon the text of the proposed law.

It will have to satisfy the principle laid down in Shreya Shingal judgement of 2015", Kaleeswaram said.

It was in the Shreya Singhal case in which the apex court struck down the Information Technology Acts Section 66A in the interest of free speech, a fundamental right.

Though he does not feel that the present law was inadequate, the lawyer said sections 354, 354A, 354B, 354C and 354D of the IPC were strong provisions to deal with cyber offences against women.

Asked if the proposed amendment covers mass media also, he said whether it will curtail the freedom of expression would depend upon the content of the proposed amendment.

"If the amendment has the tendency to picture any criticism or difference of opinion as an offence, the same will not stand the test of Shreya Shingal judgement", he said.

Because such an amendment can curtail freedom of expression of the citizen, including that of the media and it was due to this the old provision in the Kerala Police Act was struck down by the apex court along with Section 66A of the Information Technology Act, he pointed out.

In Shreya Shingal judgement, SC has said the penal provisions cannot be overbroad since that may have the tendency to trap the innocent.

Expressing concern at the increasing crime graph, fake propaganda and hate speech on social media since the outbreak of COVID-19, the government said since cyber attacks are a major threat to private life, it has been decided to amend the Police Act as it is found that the existing legal provisions were inadequate to fight such crimes.

The Governor has been recommended to issue the amendment as an ordinance.

The Supreme Court had repealed the Section 66-A of the IT Act 2000 and Section 118 (d) of the Kerala Police Act, 2011 on the grounds that it was against freedom of expression.

"The Central Government has not introduced any other legal framework to replace this. In this scenario, the police are unable to deal effectively with crimes committed through social media," a government press release said.

PTI