The recently revoked Section 118A of the Kerala Police Ordinance Act faced a lot of flak from all factions of the electoral as well as online structure. The Act was a call back to the draconian Section 66A of the Information Technology Act, 2000 with even more undefined and ambiguous terms. The Kerala government argued that the amendment was an attempt to curb abuse and create a safer online space for social media users; however, the incorporation of terms like ‘threatening’ present an idea, dangerously close to the Stalinist approach for autocratic control.
The Kerala Police Ordinanceand Constitutional Subversion
The Kerala government’s plan to introduce section 118A was largely seen as a black law, meant to curb the freedom of expression and strengthen the ambits of the chilling effect in the state.Such a provision could greatly gut the right to express over online mediums and couldpotentially advance excessive amounts of subjectivity into the censorship process.The LDF governmentintroduced the amendment citingan increase in political propaganda, cyber bullying and the growing crime statistics, clubbed withthe overarching aim of curbing anti-social elements by giving the Police Act more teeth. The primary argument of the legislators was to decrease cyber-attacks against women and children. However, a large section of activists, journalists and lawyers did not seem to agree with the government.
Regardless, despite the unconstitutionality as well as the dispensable existence of these provisions, attempts have been made to introduce such draconian legislations through multiple backdoor channels. The harm that these enactments possess, even if present for a few months, is insurmountable and should not be allowed in any form.
Vague Laws and Scope for Arbitrary Implementation
Vague laws are perhaps the most dangerous threat to the individual rights of citizens.An undefined or broad law introduces an excessive amount of subjectivity in the justice administration process and often allows the authorities to interpret charters beyond specific contours. In Grayned v. City of Rockford,the US Supreme Court noted that vague laws introduce an aspect of arbitrariness in the implementation process and often make citizens delve outside the lawful zone of civil societies; a situation that well-defined charters adequately control. Accordingly, the dangers of vagueness are even more potent in the cyber field, due to a general lack of boundaries. An undefined law encourages unnecessary litigation, eating up the judiciary’s time and eventually hampering the juridical process. It even poses the danger of allocating a Big brother identity to the state, where censorship laws become excessive and the government controls what is available for public consumption. For instance, Germany’s NetzDGcharter was an attempt to curb cyber bullying in the country by mandating government censorship through social media conglomerates.
International Riders against Cyber Abuse and Defamatory Content
Even though the ordinance had autocratic undertones, The Kerala government’s arguments in favor of the amendment outlined some major issues currently prevailing the cyber space. As per data released by the National Crime Records Bureau, cyber bullying and abuse against children and women has increased by over 36% in recent times. Further, a study by scholars from the University of Michigan recorded that there has been an exponential rise in fake and defamatory content on the internet during and post the Covid-19 lockdown. The data from the NCRB and similar studies shows that India perhaps may have to incorporate better provisions to adequately regulate the online sphere, without harming individual Freedom of expression rights. A few methods which have shown effective results include mirroring the legislations introduced in Australia and Canada and/or enhancing the self-governance tools employed by various social media websites.
The Australian government recently passed the Sharing of Abhorrent Violent Material Act, 2019 which hassignificantlyhelped the country in reducing cyber-crimes. The Act instead of focusing on citizenry rights, clamps down on online platforms and social media websites which allow the unchecked existence and sharing of fake content and act as mediums for online abuse. It includes penal provisions for the entities and its executives, and even provides scope to charge penalties riling up to 10% of the conglomerate’s entire global turnover.Moreover, the Canadian parliament has added a provision to control cyber bullying in their Education Act. The legislators realized that a majority of the abusers as well as victims of cyber abuse form a part of the adolescent population, and in order to restrict such anti-social activities it incorporated provisions within the Education Act itself. The charter includes suspension for propagating cyber abuse and expulsion or even possible jail time for repeat offenders.Incorporating an amalgamation of such provisions can greatly help India in solving its cyber issues.
The Kerala ordinance unnecessarily introduced vague and undefined elements into the cyber regulation space, had it not been revoked; the Act would have caused more harm than good. Regardless, the problems identified by the LDF do exist and a need for enhanced legislations is felt nonetheless. Accordingly, the Incorporation of Australian and Canadian practices as well as other such legislations clubbed with self-governance features can act as effective tools to curtail cyber-crimes.The emphasis of legislators on providing a safe and equitable cyber space at a time when almost all professional as well as recreational activities have shifted online shows a positive transition. Nevertheless, the rights of freedom of expression and speech can in no way be curtailed or sidestepped under the garb of providing cyber security. The Indian legislative sphere needs specific enactments; however, constitutional provisions especially tenets of Part III cannot be ignored.
The Information Technology Act, 2000, § 66A
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