oppn parties A Draconian Law In Kerala To Curb Freedom Of Speech

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A Draconian Law In Kerala To Curb Freedom Of Speech

By Sunil Garodia
First publised on 2020-11-22 12:27:43

About the Author

Sunil Garodia Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator.

When it comes to enacting draconian laws, all political party in India, whether inspired by Leftist, Rightist or Centrist ideology, are the same. Concern for free speech takes a back seat when politicians 'address' the problem of dissent. Hence, the Left Front government in Kerala, so loved by the liberals, has now issued an ordinance that will amend the Kerala Police Act. A new section is sought to be inserted in the said Act which says "anyone who produces content, publishes or propagates it through any means of communication with an intention to threaten, insult or harm the reputation of an individual will be punished with an imprisonment of five years or a fine of Rs 10000 or with both."  The new section will make it a cognizable offence and the police can act either suo motu or on a complaint by any one. The accused can be arrested without a warrant. Hence, the police have been given the power to act as judge and jury. The new section is likely to be used arbitrarily and lead to curtailment of freedom of speech, harassment of individuals and corruption.

The government has sought to justify the stringent provisions by saying it had become necessary as complaints about cyber bullying against women and children had been growing at an alarming rate. But despite its assertation that existing laws are insufficient to curb the menace of cyber bullying, if other states can take action against such crimes under existing laws, what is so special about Kerala? Although chief minister Pinarayi Vijayan has said that the amendment will not be used against any news media, the wording of the section which clearly says "through any means of communication" clearly shows that it will also be used against mass media. Will the police not act if a person complains to them that a report published in a newspaper or website or shown on any TV channel is threatening or insulting to him or her?

By giving police or an individual complainant the power to decide what constitutes content that can be "insulting", "harmful" or "threatening", the new section does away with the need for the judiciary to decide on these matters. Further, the power to arrest a person just on the judgment of the complainant or the police that what he or she has produced or published is threatening, insulting or harmful to another individual is draconian and against established rule of law. It is for the court to decide whether the content so produced or published is actually threatening, insulting or harmful. Till the court decides, the accused can have a case registered against him and can be called for questioning. But a summary arrest without a warrant is unwarranted and an abuse of law. The Kerala government would do well to focus on prosecution under existing laws rather than enacting more stringent laws.