It is most heartening to see that the Governor of Kerala – Arif Mohammad Khan has finally signed on November 25, 2020 a repeal ordinance nullifying the earlier notorious ordinance brought by the Kerala State Government that had introduced draconian Section 118A in the Kerala Police Act, 2011. This ordinance provided for jail term for any communication or publication, including social media or cyber post, that is deemed threatening, abusive, humiliating or defamatory.

The amendment (Section 118A) had the potential to muzzle all dissenting voices through all mediums. Section 118(d) of the Kerala Police Act provided for imprisonment of up to three years for any person convicted of causing annoyance to any person in an indecent manner by statements or verbal comments or telephone calls or call of any type or by chasing or sending messages or mail by any means.

In this context, it may be recalled that on March 24, 2015 in the famous judgment titled Shreya Singhal vs Union of India in Writ Petition (Criminal) No. 167 of 2012 along with others decided by a two Judge Bench of the Supreme Court comprising of Justice RF Nariman and Justice J Chelameswar, the Section 66A of the IT Act was struck down as it had a similar provision of the Kerala Police Act for being violative of the right to freedom of speech and expression and for its vagueness.

The Apex Court in this case had said that what it has said about Section 66A would directly apply to the provision as causing annoyance in an indecent manner suffers from the same type of vagueness and overbreadth... It was also rightly held that, What may be offensive to one person may not be offensive to another.

It would be useful to note that Section 66A criminalized sending of a communication – via computer or a communication device – which could be said to be grossly offensive, has menacing character or false information intended at causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or will or any electronic mail or email messages intended at causing annoyance or inconvenience or to deceive or to mislead the recipient. The old Kerala law – Section 118(D) of Kerala Police Act too suffered from the same problems as Section 66A of the IT Act and was struck down by the Apex Court!

Needless to say, in a brief statement days after the ordinance was issued, the Kerala Chief Minister Pinarayi Vijayan said that it was the government's duty to respect the serious concern voiced by various quarters on it. Earlier the CM had brushed aside the criticism and had said that:
The new amendment will in no way be used against or impartial journalism. Apprehensions to the contrary are unfounded. Such a law was necessary because cyber attacks were increasing alarmingly.

Even allies including the CPI(M)'s junior partner, the Communist Party of India, have expressed reservations on the move. Vijayan who conceded that even Left supporters had expressed serious reservations over the amendment said that:
We have been forced to bring such an amendment in view of growing cyber attacks against women and children. After concerns expressed by various quarters, we have decided not to go ahead with it. Further action will be taken after a detailed debate in the assembly.

To be sure, Kerala CM Vijayan's office sent a directive to the state director general of police not to register cases under the new law. Legal experts said that since it had already become law, the Governor will have to promulgate another ordinance or order its withdrawal on the advice of the Cabinet. Supreme Court lawyer MR Abhilash said that, Unless it is withdrawn, it will remain a law. The governor will have to promulgate another order to nullify it. The government is likely to approach the Governor in a day or two with a request to that effect said a senior government official who requested anonymity.

What's more, the Governor signed after the Kerala State Government decided to withdraw the amendment and the Cabinet recommended that the Governor promulgate a repeal ordinance and it is the first time this has happened in the state. The amendment being nullified had been promulgated on November 21. In the case of the first ordinance, the Governor had held to it without signing the ordinance for 30 days but on the contrary, the repeal ordinance was signed in a day. This itself shows that the Governor too was not happy with this new Ordinance and that is why he held to it for 30 days and when the time came for repealing it, he took just a day!

Truth be told, CPI(M) General Secretary Sitaram had also expressed his reservations over the ordinance and made it clear that it wouldn't be implemented in the form in which it had been drafted. Party insiders told the media that the central leadership too was not happy and had sought major changes to the ordinance, but the state unit thought it proper not to implement it. So the relentless pressure on the Kerala State Government was clearly ostensible!

As is quite ostensible, this ordinance that mandates a jail term for any social media or cyber post deemed offensive or threatening had triggered a fierce political firestorm with Opposition parties slamming the CPI-led ruling LDF for the harsh and draconian move to gag the media. Leader of Opposition in the Assembly – Ramesh Chennithala had accused the government of trying to silence those who criticize them. Ramesh accused the state government of trying to hoodwink the people and said that, Once an ordinance is signed by the Governor, it becomes law. The decision that the ordinance will not be implemented is meant to hoodwink the people.

There is no Constitutional validity for the amended Act. The government should withdraw the amended Act. Congress MP from Thiruvananthapuram Shashi Tharoor also criticized the ordinance saying that, It was loosely drafted and it could be used against political opponents. BJP Kerala State President K Surendran said that the amendment was aimed at silencing all political protest.

Of course, it is good to see that the Kerala Police, however, has struck a cautious note on this and maintained that before taking any further action under the amendment, a Standard Operating Procedure (SOP) will be prepared in consultation with legal experts to ensure that the ordinance is not misused in any manner.

It may be recalled that earlier on November 21, the Kerala Governor Arif Mohammad Khan had approved the Kerala Police (Amendment) Ordinance, 2020 that incorporates a new Section 118A in the Kerala Police Act. By this any person who creates or sends any information that is offensive or is intended to offend or threaten another person, through any means of communication, is liable to face imprisonment of three years or a fine of Rs 10,000 or both.

It cannot be ignored or lightly dismissed that Section 66A of the IT Act and this new Kerala ordinance are couched in a typical same language. This alone explains why there was so much of hullaballoo and brouhaha over it! What drew flak is that this new Kerala ordinance covers any means of offensive communication or criticism on any platform and not just social media. Any person who creates or sends out any information to offend or threaten another person is liable to face imprisonment of three years or a fine of Rs 10,000 or both. It also empowered police officers to initiate a case on their own and arrest the accused!

Not just this, police could also slap criminal charges on citizens by interpreting any kind of communication through any medium as defamatory. How can this be ever justified? It must be mentioned here that the knee-jerk reaction of the Kerala's State Government came in the wake of many sensational cases, including a gold smuggling racket in which powerful people were involved! Also, after the arrest of former CPI(M) Secretary's son Bineesh Kodiyeri in connection with a narcotics seizure case, many articles have appeared online against senior leaders and ministers.

No doubt, political commentator and senior journalist John Mary has a valid point when he points out on a sound footing that, The government's move to rein in criticism has backfired. The belated move to freeze the ordinance following the groundswell of resentment from across the social spectrum does not absolve the ruling party of its double standard on freedom of speech. Damage has already been done.

It is worth pointing out that in the case of the first ordinance, the Governor had held on to it without signing the ordinance for 30 days while the repeal ordinance was signed in a day. The first ordinance was promulgated without any discussion in any public forum or in the LDF. Kerala Chief Minister was thus compelled to clarify that any further amendment to the Act would be undertaken only after elaborate discussion in the State Assembly.

Be it noted, the Kerala State Government had earlier on November 25, 2020 informed a Kerala High Court Division Bench comprising of Chief Justice S Manikumar and Justice Shaji P Chaly that it has decided to withdraw the amendment. The Bench that was hearing the petitions challenging the legality of Section 118A, was informed by the additional Advocate General that the ordinance was being withdrawn with effect from November 21. Advocate Santhosh Mathew who represents RSP leaders Shibhu Baby John and two others in the case submitted that the procedure laid out in the Constitution under Article 213 is to be followed for withdrawal of the ordinance.

All said and done, it is good to see that this new repulsive, reprehensible and draconian ordinance has now been finally withdrawn after facing huge flak and criticism from all quarters. Eventually, we thus see that the Kerala State Government after facing a hailstorm of criticism from across the political spectrum was finally compelled to blink, bow and finally withdraw. But this definitely also begs the moot question: Why was the ordinance in the first place issued at all in a progressive state?

Also, did the State police really require sweeping untrammelled power as was sought to be given by this Ordinance which has finally been withdrawn? The answer obviously is in the negative! Also, the Ordinance covered any means of offensive communication or criticism on any social platform and not just on social media.

So, it goes without saying that the Ordinance has been rightly withdrawn and it should never have been tabled at the first place! But as the old saying goes that, It is better to be late than never! All the State Governments must be very careful from now onwards on this score and if they still fail to learn anything from this then they too will end up by having eggs on their faces as we saw in the case of Kerala government!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh