One step back

Kerala's Ordinance is as regressive as 'love jihad' laws

Kerala Chief Minister Pinarayi Vijayan may have dodged a bullet by agreeing with the CPI(M) high command to reconsider the draconian Ordinance amending the Kerala Police Act. The Ordinance, which was signed with unusual alacrity by Kerala Governor Arif Mohammad Khan on Saturday, added Section 118A to the Act and mandated a five-year jail term, a Rs 10,000 fine, or both, for anyone sending offensive, humiliating, or threatening messages. Mr Vijayan claimed that the Ordinance, which had been cleared by the Cabinet as far back as October 31, was aimed at protecting the women in the state from online harassment, though it is unclear why he felt the urgency to rush through this amendment without full debate in the Assembly. It is possible that senior leaders of his party understood that, apart from the damaging political fallout — given the remarkable condemnation across party lines, from the Congress to the Bharatiya Janata Party — the Ordinance would have failed before a judicial challenge. In 2015, the Supreme Court struck down the infamous Section 66A of the Information Technology Act, 2000, that made posting “offensive” comments online a crime punishable by a jail term as being constitutionally ultra vires and violative of the basic right to free speech.

Notably, the same judgment also struck down Section 118(d) of the Kerala Police Act, which mandated similar terms (though the jail term was three years). Section 118A appears to be an attempt to revive the same section and one that gives the state police wide latitude — including taking suo motu cognizance — to interpret the nature of online content. Mr Vijayan has said those practising “impartial” journalism had no cause to worry. This is a disingenuous explanation, given that terms such as “impartial”, “offensive”, and “humiliating” can be open to interpretation and there are any number of examples to show how such judgments lie in the eye of the political beholder. Indeed, the precipitate nature of this move by the Kerala government is rumoured to have been prompted by reports, especially on social media, of investigations of central agencies in the state.

Though the controversy has abated for the moment, the draconian move reflects the wider impulse within political dispensations throughout India and across party lines to curtail freedom of speech and action. It is evident in the random arrests of protestors against the Citizenship Amendment Act, the bizarre incarcerations of civil rights activists in the Bhima Koregaon case, the detentions of a university professor in West Bengal for circulating cartoons of the chief minister, or the arrests of journalists from Manipur to Tamil Nadu for criticising their respective state governments. The fact is that the state has any number of tools at its disposal to curtail the freedom of its citizenry if it so chooses and the withdrawal of an Ordinance is unlikely to cramp the Left Democratic Front’s inclinations.

But the fact is that India’s most literate state has attempted to pass laws as regressive as the spate of “love jihad” laws being planned in some states following in the footsteps of Uttar Pradesh. The countrywide trend towards framing or strengthening laws to criminalise free speech and send offenders to jail is not good governance. Kerala is as guilty as UP — but the controversy also offers all political parties an opportunity to introspect on their incipient dictatorial proclivities.