Updated: Jan 8
On 21st November, the Governor of Kerala promulgated into law an ordinance seeking to amend the Kerala Police Act of 2011 (the Act from herein). The amendment enforces Section 118A which seeks to punish the act of making, expressing, publishing, or disseminating any matter which is threatening or abusive. This move of the Left Democratic Front government is being widely criticized for the potential ill effects it could have on the right to freedom of speech in the state.
The Chief Minister of Kerala has stated that the law prohibiting abusive and threatening social media post was enacted for protecting women and transgenders who are ever so frequently the victims of online shaming. However, the critics of the government are worried that the vague terminology of the legislation would not only mute the voice of dissent but also give unbridled power to the police to impose criminal charges according to its whims and fancies.
Like all legislations, this amendment to the Act must stand the scrutiny of the Fundamental Rights enshrined in the Indian Constitution. Article 19(1)(a) guarantees all the citizens of India the right to freedom of speech and expression. However, this right is not absolute and can be reasonably restricted on the grounds mentioned in Article 19(2). The argument against Section 118A is that the vague definition used therein makes it impossible for the citizens to truly understand what conduct is prohibited and what is permitted. It proscribes posting content that is “threatening”, “humiliating” or “abusive”-the meaning of these words is gravely subjective and can potentially give way to arbitrary and discriminatory application.
Fundamental Rights enshrined in Part III of the Indian Constitution are essentially borrowed form the Bill of Rights in the Constitution of the United States of America. The US Supreme Court, on several occasions, has struck down laws for vagueness and inability to define the concerned criminal offence with sufficient definiteness. In Richard Grayned vs. City of Rockford, the Court held that due process demands that vague laws are declared void for a variety of reasons. Firstly, they fail to give the person with ordinary intelligence a reasonable opportunity to know what is forbidden. Secondly, the implementation of vague laws is often arbitrary and discriminatory. And lastly, vague laws operating to inhibit free speech can possibly cause a chilling effect as the boundaries of culpability are not clearly marked.
The Indian Jurisprudence on “vagueness as a ground for invalidating a statute” deviates slightly form what has been laid down in the United States. In Municipal Committee Amritsar vs State of Punjab[i], the Indian Supreme Court took a rather conservative approach and held that- law duly passed by the Parliament cannot be declared void on the ground of vagueness alone. Thereafter, in KA Abbas vs Union of India[ii], the Court while acknowledging the precedent laid down in the above-mentioned case, held that the courts must attempt to construe a vague law in accordance with the wisdom of the legislature. However, when such a construction is not possible and the law cannot be retrieved from the “boundless sea of uncertainty”[iii], it must be declared void. This invalidity emanates from the potential misuse of the law to abridge Fundamental Rights.
The Section 118A of the Act is notoriously similar to the gravely misused and recently invalidated Section 66A of the Information Technology Act, 2000. The erstwhile Section 66A enforced criminal liability on any person who posted with the intent of causing “annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will” to another. In Shreya Singhal vs Union of India, the constitutionality of Section 66A was challenged before the Supreme Court wherein it was declared unconstitutional for a number of reasons. Firstly, it held that Section 66A is unconstitutionally vague as:
“Expressions such as “grossly offensive” or “menacing” are so vague that there is no manageable standard by which a person can be said to have committed an offence or not to have committed an offence. Quite obviously, a prospective offender of Section 66A and the authorities who are to enforce Section 66A have absolutely no manageable standard by which to book a person for an offence under Section 66A”
Likewise, Section 118A by using open-ended and ambiguous expressions suffers from the very same malady of unconstitutional vagueness. Secondly, the Supreme Court stated that another ground for invalidating Section 66A was due to the chilling effect it has on the right to freedom of speech and expression. Section 118A of the Act does not define the terms “threatening” and “humiliating” which would inevitably take within their ambit large amount of protected and innocent speech. In fear of not being criminally charged, the citizens would give up their legitimate exercise of the right to freedom of speech and expression. Moreover, in a country as culturally and socially diverse as India, it is extremely likely that almost any opinion upon a controversial subject would end up making another feeling humiliated or threatened. In fact, like Section 66A, Section 118A of the Act is so wide that it would swallow up all unorthodox viewpoints and words of dissent, leaving no room for the society to grow or question the established norms. Thus, Section 118A is likely to cause an acute chilling effect because of its overbreadth.
Lastly, the Supreme Court declared Section 66A unconstitutional as it fails to fall within the scope of Article 19(2) of the Constitution. The Court stated that a restriction upon the freedom of speech, for it to stand the test of constitutionality, must fall within the eight listed grounds mentioned in Article 19(2). Section 118A of the Act has the potential to fit under “public order” or “morality” mentioned in Article 19(2). However, it has been previously held that for a restriction to fall under the expression “public order”, there must be a “proximate connection” between the concerned speech and disturbance of public peace and security. Thus, merely feeling threatened or humiliated vis-a-vis Section 118A would not qualify as a valid restriction under Article 19(2) unless the concerned speech directly results in the disturbance of public order. It is also pertinent to state that the “morality” as a ground for restricting free speech has never been used to censor humiliating or threatening speech. Thus, Section 118A fails to fall within the scope of the grounds mentioned under Article 19(2).
The inclusion of Section 118A utterly defies the judgement pronounced by the Supreme Court in the case of Shreya Singhal. Its application would inevitably create an authoritarian state where the government would implicate anyone who dares to dissent. It is also in gross violation of Article 19 of the Universal Declaration of Human Rights and the International Convention of Civil and Political Rights. Both of these instruments obligate India to not only guarantee its citizen the fre