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Decoding the Kerala Police (Amendment) Ordinance, 2020: The need for such law

By: Avinash Kumar & Jagrati Maru* |





“When France sneezes the rest of Europe catches a cold”

- Klemens von Metternich, an Austrian Minister during the European Revolution of 1848.[i]


The Minister’s assessment of the political nature of change was not wrong. The revolution in France began in February. By March, Germany, Denmark, Hungary and Sweden saw a revolution. Soon after, the revolution engulfed most of Europe. The basic premise demonstrated here is that political changes in one region have a tendency to spread in other regions.


This premise finds favour with the theory of democratic domino effect. The theory argues that increases or decreases in democracy in one country spread and “infect” neighbouring countries, increasing or decreasing their democracy in turn.[ii] Empirically speaking, the Countries catch 11% of changes in democracy around them. It is through this lens, this article attempts to look at the Kerala Police (Amendment) Ordinance, 2020.


The Kerala Police (Amendment) Ordinance, 2020

The Kerala Police (Amendment) Ordinance, 2020 (hereinafter “the Ordinance”) intended to amend the Kerala Police act by inserting Section 118A.[iii] The Section 118A made it an offence to make, express, publish or disseminate through any kind of mode of communication any matter which is threatening, abusive, humiliating or defaming a person or class of persons, knowing that matter is false and that the matter would cause injury to the mind, reputation or property. The punishment for such offence is imprisonment of 3 years or fine extending up to Rs. 10,000 or both.


Prima facie, the section bears certain resemblances to Sec.66A of the Information Technology Act, 2000 (hereinafter “IT act”) as both deals with cyberbullying both contain vague terms. It must be remembered that Sec.66A of the Information Technology Act, 2000 was struck down by the Supreme Court in Shreya Singhal v. Union of India[iv] for violation of Article 19 of the Constitution of India.


Nonetheless, the Ordinance received the assent of the Governor and was met with immediate backlash from all sections of the society. A common thread of criticism among all was the fact that this law would be used for stifling of public discourse. While the Ordinance is withdrawn, there is an alleged vacuum in the aftermath of striking down of section 66A of the IT Act, 2000 and subsequent absence of any other central legislation governing “offensive” comments online. Due to domino effect, other states might consider the introduction of similar legislation to fill this vacuum. Therefore, it is necessary to address the various concerns arising out of the Ordinance. Not merely for the said law created now but as an exemplar for any future legislation brought in this domain.


This series seeks to address various concerns arising out of the Ordinance such as the need for Sec.118A of the Kerala Police Act, 2011 in today’s status quo; the constitutionality of the Ordinance; and recommendations for all the stakeholders.


The need for Sec.118A of the Kerala Police Act in today’s status quo


The Amendment is said to be motivated by a recent incident in Kerala where a group of women activists poured motor oil on a YouTuber, who had used his YouTube channel to post derogatory comments against the women.[v] While the Ordinance itself does not lay down its objective, the Kerala Government explained that the objective of the Ordinance is to prevent cyberattacks against women and children. The government had further reasoned that the Ordinance was introduced amidst growing complaints about cyberbullying against women and children in which the accused persons couldn’t be restrained by the existing provisions of law.


Prima facie, a very strong contradiction arises between the stated objective and the amendment itself. The amendment uses the term “person” or “class of persons” as the victim of the new offence. The terms “person” or “class of persons” is infinitely wider than the “women and child” as the former include men, adults, any grouping of persons united by similar traits such as members of the same profession, members of same region, members of the same political parties, members of the same caste, and members of same religion etc. Therefore, the amendment outstrips the stated objective excessively. There is no need for the ambit of the section to be as wide as it is, unless there is an unpublicised objective in place as well as the real objective. The clothing of this amendment as an amendment for the protection of women and child might be merely a face-saving move in light of heavy criticism and Kerala’s recent local body elections between 8th and 12th December 2020.


The amendment is moved on the premise that there is no remedy available in cases of cybercrimes against women and children. However, that premise is flawed as well. Interestingly enough in the incident which motivated the amendment, the alleged offender is booked under section 509 IPC (word, gesture or act intended to insult the modesty of a woman), section 354 IPC (assault or criminal force to woman with intent to outrage her modesty). Complaints have also been lodged with the State Women’s Commission, Cyber Cell, Women and Child Development Department and State Gender Advisor. This does not inspire confidence in the no remedies premise.


For a more comprehensive denial of the premise, the legal framework for the protection of women and children against cyberbullying is sketched out. The starting point of such a discussion must be the definition of cyberbullying. While the law does not define cyberbullying, the most commonly accepted definition of cyberbullying is “an aggressive, intentional act or behaviour that is carried out by a group or an individual, using electronic forms of contact, repeatedly and overtime against a victim who cannot easily defend him or herself.”[vi]


Now coming to the remedies available, section 354A of Indian Penal Code, 1860 (hereinafter “IPC”) criminalises sexual harassment. It is defined as physical contact and advances involving unwelcome and explicit sexual overtures; or a demand or request for sexual favours; or showing pornography against the will of a woman; or making sexually coloured remarks. Similarly, section 354D criminalises cyberstalking. The National Commission for Women has defined Cyber Stalking in its legal module on ‘Gender Sensitization and Legal Awareness Programme' which defines Cyber Stalking as, “it involves following a person's movements across the Internet by posting messages (sometimes threatening) on the bulletin boards frequented by the victim, entering the chatrooms frequented by the victim, constantly bombarding the victim with emails, etc.”[vii] In summation, both of these offences together cover sending threatening or obscene messages, posts or emails, stealing a person's identity online and circulating false information with the intent to humiliate or harass, tracing the location of a person through illegal means, uploading obscene pictures and posting derogatory remarks online with the intent to harass.


The last nail in the coffin of the no remedies premise is that there is no bar on application of IPC and other laws to the crimes committed through online medium. For instance in the case of State of West Bengal v. Animesh Boxi,[viii] the accused took possession of some private and obscene photographs of the victim by hacking into her phone, blackmailed her by threatening to upload the stolen pictures and videos on the internet and subsequently uploaded her private pictures and intimate videos onto an obscene website. The Court tried the accused under the sections 354A (sexual harassment and punishment for sexual harassment.), 354C (voyeurism.), 354D (stalking), 509 (word, gesture or act intended to insult the modesty of a woman) of IPC and sections 66C (punishment for identity theft) and 66E (punishment for violation of privacy) of the IT Act. The Court very specifically held that uploading the picture online offended the modesty of the victim u/s. 509.[ix]


This case demonstrates that there is precedent for the application of IPC to cybercrimes. All remedies available victims of bullying in real life exist also for the victims of cyberbullying. If anything, the victims of cyberbullying can take help of IT act, as well as IPC. In that light, provisions of IPC which can be applied to assist the victims of cyberbullying other than the ones already discussed, include but are not restricted to Section 499 (defamation), Section 503(Criminal intimidation) and Section 507 (Criminal intimidation by an anonymous communication).


Other sections of various laws which can be helpful to the victims of cyberbullying include the Section 66E of the IT Act, which penalizes the violation of a person’s privacy by intentionally capturing and publishing images of a private area of any person without his or her consent. The Section 67 of the IT Act, which punishes electronic publication or transmission of obscene material, Section 67A of the IT act which particularly deals with the electronic publication and transmission of material containing sexually explicit acts and Section 67B of the IT Act which punishes material depicting children in sexually explicit acts and punishes anyone who creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in an obscene or indecent or sexually explicit manner. Moreover, Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986 prohibits the publication of any printed material containing indecent representation of women.


In the same vein, the Protection of Children from Sexual Offences Act, 2012incorporates provisions which prevent sexual harassment of children as well as the use of children for pornographic purposes. The sections include Section 11 which defines sexual harassment and makes it a punishable offence, Section 12 penalizes sexual harassment children. Section 13 makes involving children for pornographic purposes a punishable offence and Section 14 which penalizes anyone using children for pornographic purposes. Therefore, the dichotomy created by the premise that the remedies exist for victims of bullying in real life but not for victims of cyberbullying is patently false.


In conclusion, the new Kerala Police (Amendment) Ordinance, 2020 is an ordinance with a noble stated objective and very far-reaching consequences on the freedom of speech and expression. However, there is no need for the Ordinance in today’s status quo as there is a wide variety of remedies present in other statutes including Indian Penal Code, Information Technology act, 2000.



In the next part of the series, the constitutional validity of the Ordinance will be tested.


***


* The authors are the students of Gujarat National Law University, Gandhinagar.


[i] The quote has now become a commonplace saying in geopolitics. Attributed to the diplomat in Lubin, A., 2015. Reading America from the Peripheries. American Quarterly, 67(1), pp.219-229.

[ii] Leeson, P.T. and Dean, A.M., 2009. The democratic domino theory: An empirical investigation. American Journal of Political Science, 53(3), pp.533-551.

[iii] Sec. 118A, The Kerala Police Act, 2011, notified in KERALA GAZETTE, No. 15312/Leg.E1/2020/Law. Regn.No. KERBIL/2012/45073 dated 05-09-2012 with RNI RegNo.Kl/TV(N)/634/2018-20 ORDINANCE NO. 79 OF 2020 THE KERALA POLICE (AMENDMENT) ORDINANCE, 2020; available at https://prsindia.org/files/bills_acts/bills_states/kerala/2020/The_Kerala_Police_Amendment_Ordinance_2020.pdf

[iv] Shreya Singhal v. Union of India, AIR 2015 SC 1523.

[v] For more on the incident, refer to Kerala: Women activists pour motor oil on the man who posted abusive video, seize his laptop, Scroll dated September 27 2020, available at https://scroll.in/latest/974237/kerala-women-activists-pour-motor-oil-on-man-who-posted-abusive-video-seize-his-laptop

[vi] Smith, P.K., Del Barrio, C. and Tokunaga, R.S., 2013, Definitions of bullying and cyberbullying: How useful are the terms, in Principles of cyberbullying research: Definitions, measures, and methodology, Routledge, pp.26-40.

[vii] Legal module on ‘Gender Sensitization and Legal Awareness Programme, Ministry of Women and Child Development, National Commission for Women, 2019, available at. http://ncw.nic.in/notice/legal-module-gender-sensitization-and-legal-awareness-programme-collaboration-kendriya.

[viii] State of West Bengal v. Animesh Boxi, GR No. 1587 of 2017. Available at https://globalfreedomofexpression.columbia.edu/wp-content/uploads/2018/06/State-of-West-Bengal-v.-Animesh-Boxi.pdf

[ix] Page 122 of the judgement.


Image Source: https://english.mathrubhumi.com/news/kerala/withdrawal-of-police-act-amendment-requires-issuing-new-ordinance-1.5230325




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