Authored By: Sukhman Sandhu
Hate Speech and the Internet
The Kerala Cabinet on 21 October, 2020, proposed to amend the Police Act to insert Section 1118A which provided “that any person who creates, publishes or propagates any content in any communication medium with intent to threaten, insult or defame any person may be punished with five years imprisonment or fine up to Rs.10,000, or both”. This decision came with the backdrop of increasing cases of hate speeches and cyber defamation via the internet, such as in the case of Vijay P Nair wherein he posted a Youtube Video, ‘Why do feminists in India, especially Kerala, not wear Underwear?’, which attacked many female artists and activists. To which, some of these women reacted by showing up to his office and making him publicly apologize on live stream, after pouring black oil on him and slapping him for posting such a video.
On the other hand the observation made in the High Court Judgement of Sreeja Prasad vs. State of Kerala which was pronounced on 11 May, 2020, called upon the State to tackle the problem of increasing hate speeches over the internet. The Court observed that, “The verbal fight in social media is increasing. If one person post a defamatory or lascivious comment in the social media, instead of approaching the police, the others will respond to the same with more vulgar words. There is no end to it. This is a situation where the rule of law will fail. The parallel societies who are not concerned about the rule of law will emerge.”
The Court while also citing the decision made in Sreekumar Case stated that, some activities and comments may not fall under the purview of Section 67 (Punishment for publishing or transmitting obscene material in electronic form) of the IT Act and so “in such situation, the State has to wake up and legislate appropriate enactments to curtail the social media war. It is the duty of the State to maintain the public order”. The Court had called upon the State to enact the required laws to address the increasing problem of back and forth hate speeches made over the internet.
Proposed Amendment to the Kerala Police Act
Therefore, the Cabinet after giving due consideration to the High Court Judgment as well as the concerns forwarded by women on the rising cyber crimes, and the inability of current laws to deal with the same, proposed an amendment to be made to the Police Act as stated above. The Cabinet also observed that the Union has not established laws in place of Sections 66 A of the IT Act and Section 118(d) of the Kerala Police Act, which were struck down and declared unconstitutional by the Supreme Court in the case of Shreya Singhal vs. Union of India in 2015. The provisions of above mentioned sections were declared unconstitutional by the Court on the grounds of being “vague and over-broad”, having “undefined terms” when it comes to the definition of information capable of ‘causing annoyance’, ‘inconvenience’, or being ‘grossly offensive’ which may cover a large amount of protected or innocent speech, making it a direct violation of Article 19(1)(a) of the Indian Constitution.
The amendment related to Section 1118A of the Police Act, that was proposed by the Cabinet was in tune with the provisions of Section 66 A of the IT Act and Section 118 (d) of the Police Act, previously held unconstitutional. It could be observed that the proposal seeks to revive the essence of the provisions previously declared unconstitutional, as it duplicates the existing law. So, the proposed amendment forwarded by the Cabinet was in direct violation to the law laid down by the Supreme Court of the country in the Shreya Singhal Case. Moreover, the Cabinet went gone beyond in its proposal as the new amendment could be misused against both men as well as women, leading to the problem of overlapping of laws and causing confusion over the criminal liabilities.
Backlash Faced by the Government
However, recently as speculation were going around regarding such an amendment, it was observed that the opposing parties both Congress as well as the BJP were against such a move. The opposing parties termed it to be a “black law” and a “direct attack on freedom of speech” . Therefore, the amendment was put on hold as the ordinance was withdrawn. The contentions were raised on the ground that such a law would essentially threaten the Freedom of Speech guaranteed to citizens of this country. Moreover, it was claimed that the proposed amendment gave far reaching powers to the police when it comes to the initiation of protection as well as the punishment for posting intimidating or defamatory content through any means.
Further, it is important to note that there already exist numerous laws addressing the same problems identified by the Cabinet. These laws are namely:
- Section 119 (Punishment for Atrocities against Women) of the Kerala Police Act;
- Section 67 (Punishment for publishing or transmitting obscene material in electronic form) of the IT Act;
- Sections 511 (Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment), 509 (Word, Gesture or act intended to insult the modesty of a women), 505 (Statements conducing to Public Mischief), 504 (Intentional Insult with intent to provoke breach of peace), 503 (Criminal Intimidation), 499 (Defamation) which has been applied to cyber defamation as well, 354A (Sexual Harassment and Punishment for Sexual Harassment), 294 (Obscene acts and songs), 292 (Sale, etc., of obscene books, etc), and 159 (Affray) of the Indian Penal Code; and
- Section 11 (Sexual Harassment) of the Protection of Children against Sexual Offences Act.
Implications of such an Amendment
So, if a new law to criminalize the offence that is previously criminalized was enacted, it would lead to uncertainty and overlap of multiple laws, leading to the problem of encroaching upon the Freedom of Speech guaranteed under the Constitution. Therefore, it becomes crucial for any new legislation to be enacted with an intent of addressing the “legal gaps” rather than duplicate the previously existing laws. The legal gaps related to the inadequate protection of the Constitutionally guaranteed right to dignity of women, the outmoded definition of Section 509 and Section 511 of the IPC are to be looked into and the scope of the same is to be widened according to the changing needs of the society and advancement of technology.
Therefore, it is suggested that no attempts should be made to revive the provisions of Sections 66A of the IT Act and 118(d) of the Kerala Police Act, as that would pose a danger to freedom of speech as observed by the Supreme Court. However, a new provision may be added to the Police Act in lines with Section 3(x) of the SC, ST Prevention of Atrocities Act, which would not permit complaints against women to be registered, but women engaging in attacking other women may be prosecuted under other relevant laws. Moreover, the attempt to commit such acts also need to be criminalized so any attempt to commit such an act should also be made punishable by half of the punishment, as if the act was actually committed. Lastly, attempts should be made to speed up the redressal mechanism related to complaints made in regards of hate speech, gender based violence, and hate crimes.
The author is an undergraduate student at the Rajiv Gandhi National University of Law, Punjab.