By: Avinash Kumar & Jagrati Maru* |
On 21st November 2020, the Kerala Police (Amendment) Ordinance, 2020 (hereinafter “the Ordinance) was notified by the Kerala Government. This was received with much criticism including allegations of the Ordinance violating freedom of speech and expression. Come 23rd November 2020, capitalising on the criticism, the Opposition and activists moved to the Kerala High Court challenging the constitutional validity of the Ordinance. On 25th November 2020, the Kerala Government repealed the Ordinance.
While this whole series of events took only 4 days, it has far-reaching consequences on freedom of speech and expression. Unfortunately, because of the repeal, these far-reaching consequences could not be adjudicated by the Kerala High Court. The question of the constitutionality of the Ordinance is not conclusively answered and therefore, the window on passing similar legislation remains open. This part of the series seeks to answers some of the constitutional concerns including similarity with s.66A of the Information Technology act, 2000 (hereinafter “IT act”); procedural concerns due to use of ordinance making power, substantial concerns of arbitrariness, vagueness and proportionality.
Similarities with S.66A of the IT Act, 2000
Almost all analysis of the Ordinance makes at least passing reference to the Sec.66A of the IT act and for good reasons. Both laws are intended to curb cyberbullying. The Ordinance came into effect in order to fill the vacuum created by the striking down of Sec.66A. In that sense, the Ordinance is the successor to Sec.66A.
The table below is given as an indicator of the similarities.
The key similarity to focus here is the kind of speech criminalised i.e. “humiliating”, “abusive”, “annoyance”, “inconvenience”, “grossly offensive”, “menacing”. All these kinds of speech are nowhere defined within the Ordinance or the IT act. In fact, these terms are not defined in law at all. While testing the constitutional validity of the s.66A, Nariman, J. in the case Sherya Singal v. Union of India, observed that “net of the s.66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net”.[iii]
Ultimately, the wide net cast by s.66A led to the section being struck down on the grounds of vagueness and overbreadth. Similarly, the Ordinance should also be hit by vagueness and overbreadth, something this series will revisit at length.
Procedural concerns arising due to use of ordinance making power
The Ordinance promulgated by the Governor of Kerala under the article 213 of the Constitution, which empowers the Governor to promulgated ordinances during the recess of the legislature, if circumstances exist which render it necessary for him to take immediate action.[iv] Ordinarily, the legislative power in a democratic set-up lies with the legislature, who are elected directly by the people.[v] The ordinance making power of the executive is an exception to this general norm and is justified only on the basis of extraordinary situations requiring an immediate response. Therefore, if an ordinance is not a response to extraordinary situations, it is undemocratic.
This reflects in the twofold requirement as per the article- firstly, the legislature must be in recess and secondly, the Governor must be satisfied about the necessity which requires immediate action. The question of judicial review of satisfaction is one with a long history.[vi] Suffice to say, the position now is that the satisfaction of governor is not immune to judicial review.[vii] The test is “whether the satisfaction is based on some relevant material”.[viii] It is only in cases where the court finds that “the exercise of power is based on extraneous grounds and it amounts to no satisfaction at all that the interference of the court may be warranted in a rare case”.
According to the National Crime Records Bureau, there has been a total of 777 crimes of cyber-bullying of women across India. [ix] Out of these 777 crimes, only 4 crimes were reported in Kerala. In 2019, there were 739 crimes all across India and in 2018, the numbers drop to 542 crimes all across India. This is hardly an extraordinary circumstance requiring an immediate response. Therefore, the ordinance fails the satisfaction test.
Substantive concerns
Article 14, 19 and 21 form the golden triangle upon which the constitutional validity of a law can be tested. Above all, these articles require the law to be reasonable.[x] This reasonableness comes in various forms, such as arbitrariness, vagueness, reasonable nexus of the law with the object, balancing of social and private interests, the overbreadth of the law, the chilling effect of the law etc. The Ordinance is now tested on the various forms of reasonableness.
Concerns with arbitrariness
Article 14 of the Constitution “strikes at the arbitrariness in State action and ensures fairness and equality of treatment”.[xi] The expression ‘arbitrarily’ means “in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in the nature of things, non-rational, not done or acting according to reason or judgment, depending on the will alone”.[xii]
The Ordinance creates an offence, which has already covered by existing legislation as established in the first part of the series. There are two options to prosecute an accused party, under the existing legal regime and under the Ordinance. This allows for the prosecuting agency to pick and choose under which law they want to prosecute the offenders. For instance, for the crime of defamation under IPC, the maximum punishment prescribed is 2 years.[xiii] Under the new ordinance, the maximum punishment is 3 years. On the same facts, the accused can be punished for either 2 years or 3 years depending on the whims of the prosecuting agency with no rule or reason to guide them. Therefore, the Ordinance suffers from arbitrariness.
Concerns with vagueness
A vague law is one which does not lay down the standards of its application. As there are no standards upon which the conduct may be evaluated, vague laws tend to “trap the innocent by not providing fair warning” of criminal conduct.[xiv] In words of the Apex Court, “uncertain and undefined words deployed inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked”. Furthermore, it has been held that “ the law must be held to offend the Constitution and such invalidation arises from the probability of the misuse of the law to the detriment of the individual”.[xv]
A pertinent example is the case of State of Madhya Pradesh and Anr. v. Baldeo Prasad,[xvi] wherein the Central Provinces and Berar Goondas Act, 1946 was held void for vagueness. According to the act, “Goonda” is “a hooligan, rough or a vagabond and as including a person who is dangerous to public peace or tranquillity.” The Supreme Court emphasised on the fact that the definition was an inclusive one, and it indicated no real test to place a citizen in the first category of the definition.
Coming back to the Sherya Singal case (supra) the Supreme Court observed that the words in s.66A suffer from vagueness as none of them has been defined in the IT act. Moreover, certain words were termed as “nebulous” meaning that what is offensive to one person may not be offensive to another person. The Court also questioned, partly in jest whether sending a message 8 times fall under “persistently sending” or whether 7 is sufficient. The words “threatening”, “humiliating” and “abusive” suffer from exactly the same kind of vagueness. They are not defined anywhere in the Ordinance and are nebulous. There are no set contours of humiliating, threatening and abusive speech, which would invariably lead to trapping of citizens. Therefore, the Ordinance suffers vagueness.
Concerns with proportionality
In Bachan Singh v. State of Punjab, wherein the constitutionality of death penalty was challenged, it was held that “an essential element of the rule of law is that the sentence imposed must be proportionate to the offence”.[xvii] If a law provides for imposition of a sentence which is disproportionate to the offence, “it would be arbitrary and irrational, for it would not pass the test of reason and would be contrary to the rule of law and void under Articles 14, 19 and 21”.[xviii]
Coming to the Ordinance, the punishment for “humiliating” and “abusive” speech is 3 years. This is wholly disproportionate. For context, sec. 304A of IPC describes maximum punishment of 2 years for negligent and rash acts, causing deaths.[xix] This creates a situation where the punishment for causing the death of a person is less than the punishment for the humiliation of that person. That is highly absurd and something out of a dystopian society.
Similarly, punishment for “defaming” speech under the Ordinance is in excess of that u/s. 500 of IPC as discussed earlier. The punishment for Assault u/s. 351 of IPC, which is similar to “Threatening” speech is only 3 months.[xx] Therefore, the Ordinance suffers from the vice of disproportionality.
Conclusion
The premature repeal of the Ordinance prevented the need for Courts to conclusively determine the constitutional concerns arising out of the Ordinance. However, upon examination of the Ordinance, it suffers from procedural irregularities as well as substantial violations of the golden triangle.
***
* The authors are the students of Gujarat National Law University, Gandhinagar.
[i] Sec. 118A, the Kerala Police Act,2011.
[ii] Sec. 66A, The Information Technology Act, 2000.
[iii] Shreya Singhal v. Union of India AIR 2015 SC 1523.
[iv] Art. 213, Constitution of India.
[v] MP Jain, Indian Constitutional law, Chapter III – Central Executive (LexisNexis 2014).
[vi] For instance, A.P. Pandey’s Hundred Year of Ordinances in India: 1861-1961 published in Journal of Indian Law Institute (1968) covers 100 years of ordinances.
[vii] S.R. Bommai v. Union of India,1994 AIR 1918; AK Roy v. Union of India, 1982 AIR 710 and Krishna Kumar Singh v. State of Bihar, 2017 (2) SCJ 136.
[viii] Krishna Kumar Singh v. State of Bihar, 2017 (2) SCJ 136.
[ix] Page 752, Crime in India 2019: Statistics Vol 2, National Crime Records Bureau.
[x] For article 14 and reasonableness refer to Ramana Dayaram Shetty vs The International Airport, 1979 AIR 1628; article 19 and reasonableness refer to Chintaman Rao v. The State of Madhya Pradesh, [1956] S.C.R. 759 and article 21 and reasonableness, Om Kumar v. Union of India, AIR 2000 SC 3689.
[xi] Maneka Gandhi v. Union of India (1978) 1 SCC 248.
[xii] Sharma Transport v. Government of A.P. (2002) 2 SCC 188.
[xiii] Sec. 500, Indian Penal Code, 1860.
[xiv] Kartar Singh v. State of Punjab, (1994) 3 SCC 569.
[xv] K.A. Abbas vs. the Union of India (UOI) and Ors, AIR 1971 SC 481.
[xvi] AIR 1960 SC 293.
[xvii] Bachan Singh v. State of Punjab, AIR 1980 SC 898.
[xviii] Samaraditya Pal, S Pal: India's Constitution --Origins and Evolution, Vol 2, Articles 19 – 28, Chapter on Article 21 (LexisNexis 1st Ed. 2014).
[xix] Sec. 304A, Indian Penal Code, 1860.
[xx] Sec. 351, Indian Penal Code, 1860.
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