"I disapprove of what you say, but I will defend to the death your right to say it"
-Evelyn Beatrice Hall
Freedom of speech and expression as granted to us by the Constitution of India has been often oppressed by the very same forces, we have chosen to lead. Ever since the booming of the pandemic, the youth including myself, have started to look at the world through the power of social media and have started to ask questions. From the darkest period of Indian democracy (aka the emergency of the 70s) to the latest amendment of the Kerala police act, Article 19 has always been a matter of discussion accompanied by ART 21.
In the limelight of being praised globally for its efforts against the pandemic, the left lead Government of Kerala did hide its incompetency at many a things under the veil of its achievements. It was finally the gold smuggling case that had alleged links to the Chief Minister's office that started the downfall of the left government and has sparked an outrage among those very people who believed in this government and today, the government has officially put out the new poorly worded amendment to the police act that can clearly be misused as a tool for curbing the very existence of article 19.
The origin of the amendment took place after the incident of 3 women allegedly attacking Vijayan P Nair after his controversial video went online which had defamatory and derogating content which was also extremely misogynistic. A widespread rise was there among the netizens in support of the women who took the matter into their own hands as several complaints to the authorities went in vain. The government took the issue seriously only after it had become a sensation among the youth and had given out a draft of the new amendment of the Police act that would aim at curbing such defamatory, derogatory and abusive comments on the online platform in late October 2020. However the amendment, which included the amendment of Section 118(a), was found out to be poorly worded and it gave birth to a new set of outrages criticizing how this would effect not just press freedom, but creative freedom too. From humor sense to humor censored, this act would mean the end of Freedom of speech in many senses as the act clearly doesn't mention as what would be considered as defamatory or abusive.
The new 118(a) is simply another form of the repealed Section 66 of the IT Act 2000. The opposition (UDF) along with BJP has already made allegations of the the act and its usage of curtailing the rights granted by our constitution, however the Chief Minister Pinaray Vijayan has argued that the law won't be used as a curtailment. The questions rise at such a comment made by the CM.
The most obvious one being the non competence of the Government to the probe against the gold smuggling case and the CM's public statements of how the media are spreading false allegations and how a cold war of that kind would be related to this new amendment.
However the act simply doesn't fill itself into the claims of being an aid for women to protect themselves from abusive comments as it simply fails to do so. The act only says that individuals who make abusive and harmful comments or defamatory statements, even with the accused having the knowledge of such said fact being false information, and yet expresses such wordings intentionally, through any forms of communication would undergo the punishments mentioned in the act.
The vague wordings of the act can hence clearly be used into the advantage of the accused through the defense of 'mistake of fact' or by arguing that the said facts, were hearsay, and the accused was only a shackle of a long chain. For example, if I would comment on a person A in a defamatory manner and be arrested under this act, I could argue in court that I had no intention to defame A, but what I said was something I believed to be true through various unverified sources and to my knowledge, none of those statements were false and it was simply a mistake of fact. A loop for the very same people the government is tryin to nab? Maybe, but this could also be the truth in many a cases. Imagine someone being arrested because for his/her comment that had offended someone, even though he/she had no intention to do so but did the same in good faith of a healthy argument.
Arguments on the Internet, ranging from comment wars to fan wars to online news debates, this act can be used to nab several people for asking questions to making statements. Imagine an opposition leader calling out the government to be incompetent, for which the government can now press charges against the man for trying to defame the government or can simply argue that CM's mental health was affected by the same (possibilities).
The next flaw is the relation of this act to the press freedom. The ultimate duty of press is to provide information to the public. The information may come from rock solid sources to hearsays and alleged statements. A channel that provides an alleged news, even after stating the fact of the news being only alleged, could face legal norms if not an arrest as the news reporter or channel had full knowledge of the fact's possibilities of being false. A rare and uncommon case, but not impossible.
And above all, memers. Memes have the backbone of social media and yes, this artform is what will be facing the maximum number of offences under this act. Memes are mostly based on ideas that arise from the happenings around the world which could may or may not be factually correct. It is an art form that requires a great deal of creativity to spread out laughter even through the darkest of incidents. The fact that unintentional acts are not being excused remarks a price on the heads of these memers who are getting popular on the net by the day. Memes and trolls are mostly unintentionally offensive, which at times mocks people for their mistakes that range from politicians to comedians themselves. Such trolls provide criticism and help in raising voices regarding a prevailing issue if not in the lightest, but strongest manner by bringing some laughs. Comedy is something that is offensive in one way or the other, or atleast it is for the thin skinned. The law doesn't mention about such unintended offensive statements. Since comic statements are not always factually correct and could even be deemed as offensive, the comedians/memers could end up in jail through this act. Funny statements, to serious intentional ones, this act can curb both but the government should understand the difference between the former and latter.
The place where this law lacks integrity is where it has not mentioned the exceptions to this act. Unintentional or healthy criticisms shouldn't end up in jail for the same is something that is required in a democracy. A healthy criticism is something that would make a democracy grow more and help those in power to rectify their mistakes. It is indeed true what many experts have stated, and as already mentioned above, that this act is simply section 66a of the IT act that has come under the disguise of this new 118(A) of the KPA. Unclear words can cause more harm than unsaid words, especially in law.
On the bright side, the act does put a cuff on the hands of many culprits or has the power to do so. Abuse is not something that needs to be put up with freedom of speech as it would simply kill the idea of the right. An act that needs a major development was hastily put into force by the government of Kerala which was known for its open mindedness to accept people. Curbing of abuse and curbing of freedom of speech are of two extremes and its time that the government realize the same. However only time will tell if the act does the unfortunate or not.
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