The Kerala Police Act – Amendment, And The Right To Dissent

The Kerala Government defended its recent move to regulate speech on the internet on grounds of addressing hate-speech in cyber space. N V KRISHNA KUMAR questions the need for such specific and overarching laws that curb dissent in light of the existing mechanism under criminal law.

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Speaking at an event organized by the Supreme Court Bar Association on February 24, 2020, Justice Deepak Gupta said that 'Talking to the Bar about dissent is like taking coal to Newcastle. If anything, the Bar is a shrine for dissent.'

The Kerala Government, in its collective wisdom, tried to get in a law that could have given the police arbitrary powers to incarcerate a citizen. The amendment to the Kerala Police Act proposed three years of imprisonment and a fine of ₹10,000 for those convicted of producing, publishing, or disseminating derogatory content through any means of communication to intimidate, insult or defame any person.

The government mooted the revision because a group of women activists took the law into their own hands. They confronted a blogger who used his YouTube channel to broadcast abusive and derogatory comments against them. The Kerala Government felt that the absence of a 'strong' law to prevent online slander results in many such cases of vigilantism.

So what is behind the kerfuffle caused by this amendment?

The right to dissent

At the core of it, this amendment would have resulted in an infringement of the right to dissent as granted by the Constitution — one of the most important rights guaranteed by our Constitution. As long as a person did not break the law or encourage strife, he has every right to differ not only from every other citizen but also those in power. He has the right to propagate what he believed in.

Shorn of all legalese it means that in a democracy every citizen has a right to participate not only in the electoral process but also in the way in which their country is run. This right would become meaningless if that person were not able to criticise the actions of the government.

The Constitution grants every citizen the right not only to participate in the democratic process but also the right to express his views though they are totally contrary to the views of those in power. Of course, it is the responsibility of the individual(s) to ensure that these views are expressed in a peaceful manner. The cause of the individuals may not always be right. At the same time, the government may also not be in the right.

Speaking at an event organised by the Supreme Court Bar Association on February 24, 2020, Justice Deepak Gupta said, "Talking to the Bar about dissent is like taking coal to Newcastle. The Bar Room is the most unholy place where nothing is sacred, no reputation so unimpeachable that it cannot be blown to smithereens, no personality so towering that it cannot be brought crashing down, no character so pure that it cannot be torn to shreds, no idea so holy, that it cannot be disagreed with. That is the essence of dissent. If anything, the Bar is a shrine for dissent."

The holy book: Constitution of India

The Preamble to the Constitution of India promises liberty of thought, expression, belief, faith, and worship.

Justice Deepak Gupta continued, "These three freedoms are vehicles through which dissent can be expressed. The right to freedom of opinion and the right of freedom of conscience by themselves include the extremely important right to disagree. The right to disagree, the right to dissent and the right to take another point of view would inhere inherently in each and every citizen of the country."

He further added, "Every society has its own rules and over a period of time when people only stick to the age-old rules and conventions, society degenerates. New thinkers are born when they disagree with well-accepted norms of society. If everybody follows the well-trodden path, no new paths will be created, no new explorations will be done and no new vistas will be found."

The justice underlined that when those in power claimed that they represented the will of all the people, it was a totally baseless claim. Inasmuch as they really didn't represent the will of the entire people.

Assuming that they represented more than 50% of the electorate, could it be said that the remaining 49% of the population had no voice whatsoever in running the country? Was it right to ask the remaining 49% to remain silent till the time of the next elections? The judge reiterated, "In my view, the answer has to be a big NO."

The power of the Indian Penal Code 

On the flip side, how does one control cyber-bullying which is prevalent around the world: from the trivial trolling on social media, to targeted posts, anonymous stalking, and many other such online activities?

Previously there was Section 66A, which has now been struck down by the Supreme Court of India. But today, with this section abolished, there is a general belief that there are no laws to safeguard against cyber bullying.

However, looked at in totality, the Indian judiciary does have plenty of provisions to hold these acts accountable and mete out punishments.

According to N.S. Nappinai, lawyer at the Supreme Court of India, and founder of Cyber Saathi, "The key is in raising awareness among the public regarding existing laws, instill  a sense of responsibility as well as fear of retribution, and make the process of addressing cyber-crime grievances more approachable for everyone."

Depending on the kind of cyber-bullying or any other action that is committed, there are enough laws under IPC which can be applied. While it's true that no particular section may be applied directly, there are more than enough sections and provisions to deal with such cases.

There are huge challenges. It is best that everything is debated threadbare and then suitable laws are passed keeping in mind the consensus.

The Kerala government has withdrawn the controversial act to punish 'offensive' social media posts.

Long live Indian Democracy and Constitution!

(N V Krishnakumar is a senior advertising professional based in Mumbai with varied interests that include reading and writing. The views are personal.)