Sec 118A enacted by Kerala is necessary to curb the dangerous menace of FAKE NEWS

The criminalisation of FAKE NEWS by issuing an Ordinance in Kerala has sparked controversy inviting reaction from liberals and rights activists.

The Kerala Police Act of 2011 has been amended by Ordinance to insert Sec 118A, which states:

"Whoever makes, expresses, publishes or disseminates through any kind of mode of communication, any matter or subject for threatening, abusing, humiliating or defaming a person or class of persons, knowing it to be false and that causes injury to the mind, reputation or property of such person or class of persons or any other person in whom they have interest shall on conviction, be punished with imprisonment for a term which may extend to three years or with fine which may extend to ten thousand rupees or with both."

The above provision has three ingredients. Firstly, the content should be threatening, abusive, humiliating or defamatory; secondly, the speaker, writer or messenger should have known that it's false; and thirdly, there should be an injury to the complainant.

Sec 118A is wider in scope than Sec 499 of IPC, because the latter only criminalises defamation. The Sec 118A covers threats, abuses and humiliations.

But, Sec 499 of IPC doesn't permit truth as defence unless it's in the public interest [First Exception]. Whereas, Sec 118A permits truth as a complete defence.

Hence, Sec 118A enacted by Kerala is softer than Sec 499 with regard to defamation, but it is wider in application encompassing threats, abuses and humiliations.

The urgent need to curb fake news shouldn't be ignored.

Even though fake news existed earlier, it has become impossible to check or control after the advent of social media. Fake news spreads almost instantly.

Women are the main victims of fake news. Mischievous boys circulate morphed nude photos of girls in the neighbourhood. Politicians who failed to sell gossip of how some other politician has an illegitimate child, or how someone is involved in an affair, or some false allegation against Nehru or how Sardar Patel did this or that—all this has conveniently used this medium to push false information and gossip that has no basis.

Also Read: Amid public pressure, Kerala govt puts ordinance punishing "abusive" posts on hold

We have seen how minorities were accused as spreaders of coronavirus without any evidence.

People are slowly getting poisoned with communal and casteist ideas with fake stories. Therefore, legislating Sec 118A is a step in the right direction.

However, serious concerns are raised with regard to likely abuses by the police.

The solution probably lies in changing on the procedural side. At present, the offence under Sec 118A is made cognisable empowering police to arrest without warrant. The arrest without a warrant is generally the most misused concept. Therefore, it's advisable that Kerala changes its law and makes Sec 118A as non cognisable offence except with regard to complaints by women and children.

Some have tried to compare Sec 118A with Sec 66A of the IT Act which was struck down by the Supreme Court in the Shreya Singhal case for its vagueness and overbreadth. The SC while striking down Sec 66A as violative of free speech guaranteed under Art 19(1)(a) of the Constitution of India rightly observed that:

"Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net. Such is the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total."

… … …

"We, therefore, hold that the Section is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of overbreadth."

However, Sec 118A seems to be tightly worded.

Sec 66A criminalised messages which were "menacing" and which caused "annoyance, inconvenience, danger, obstruction" etc. These are not the standard legal expressions with definitive meaning. Whereas, the expression threat and abuse used in Sec 118A have a definitive meaning.

Similarly, many have said Sec 118A is a reincarnation of Sec 118(d) of the Kerala Police Act which SC has rightly knocked out. The said provision vaguely made it an offence for any individual to cause "annoyance to any person in an indecent manner by statements or verbal or comments or telephone calls or calls of any type or by chasing or sending messages or mails by any means,". Sec 118A doesn't have vague words like "annoyance" to invite the charge of vagueness. Hence, the comparison is incorrect in my view.

Hence, I would say that Sec 118A is legislation that is necessary to curb fake news. It's constitutionally valid prima facie. However, the Kerala Government should do the following to save the legislation from the vice of unconstitutionality:

1.  Amend treating offence under Sec 118A as non cognisable offence except with regard to complaints by women and children; and

2.  Delete the word "humiliating" in Sec 118A.

(Mohan V. Katarki is a Senior Advocate at the Supreme Court. The views are personal.)