Kerala Chief Minister Pinarayi Vijayan has withdrawn the controversial Sec 118A of the Kerala Police Act, also known as the anti Fake News law, pending fine-tuning and further consultations.
“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,” said the provision.
The ordinance to amend the Kerala Police Act was withdrawn after many activists raised concerns about its possible misuse.
However, an analysis of the provision, as well as the situation on the ground, shows that it is high time for the government to come up with a law to punish those who intentionally spread fake news for various reasons — including commercial gain, political gain and for harassing their rivals.
The current provisions in the IPC have turned out to be ineffective as they are tuned more towards individual application — such as one person attacking another using fake videos and photographs.
Fake news and other manipulated and misrepresented content targeted at social and political aims are currently left alone as nobody has the time to file cases against the hundreds of such pieces of content he or she may encounter each month.
Because of this, fake and misrepresented content designed to incite hatred or revulsion against a political party, a community or a country are quite common on India’s social and traditional media, including TV news channels.
THE PROBLEM WITH KERALA’S APPROACH
The primary concern with Kerala’s current, police-centric approach to fighting fake/manipulated content is around execution.
This is because most of such content — which target specific political parties, leaders, communities, governments and countries — are generated by people acting in sympathy with, or on behalf of, political parties.
The big concern is that no government controlled by a political party can be impartial when identifying and punishing fake content around the theme of political subjects, especially since these are mostly created by workers of political parties, including the ones in power.
In concrete terms, critics ask how the police force, controlled by the CPIM-led government, can remain fair and impartial when dealing with fake content involving CPIM, BJP and Congress.
One of the suggested ways to resolve the problem of ensuring impartiality is to completely remove the police’s own powers to recognize and register such crimes, and to limit the police’s role to investigating complaints in this regard from third parties.
This would, in a way, ‘level’ the playground considerably as the police themselves would not involved in originating cases, but only in investigating them and filing the charge sheet, according to legal experts like Senior Supreme Court lawyer Mohan Katarki.
“The solution probably lies in changing on procedural side. At present, the offence under Sec 118A is made cognisable empowering police to arrest without warrant. Arrest without a warrant is generally the most misused concept,” he points out. “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.”
However, even as making the offence “non-cognizable” can ensure greater protection against misuse by corrupt police officers and a more level playing field for political parties, this will affect the speed of implementation, as it will require individuals or organizations to approach a court for prosecution to begin.
Given the speed at which fake news travels on social media, it may very well become impossible to try to track down the source of a fake news item by the time the complainant manages to get a court hearing.
Moreover, it remains to be seen how many individuals or organizations will be willing to file a case of fake content just to ‘protect the society/community’ at large. Most people, say others, simply wouldn’t bother and would prefer to ignore such fake content.
As a compromise, therefore, it might be more practical to allow the police to take up such cases directly, while setting up some sort of permanent quasi-judicial body to either adjudicate or at least provide ongoing oversight to cases under the section registered suo motu by the police.
Katarki points out that the Kerala law is far more precise and targeted than previous attempts by both the state government and the central government, most of which have been struck down by the court for being too broad in scope and endangering free speech.
He pointed out that unlike the notorious Sec 66A of IT Act and Sec 118(d) of Kerala Police Act — both of which have been struck down by the Supreme Court — the new section is more carefully worded.
“Sec 66A criminalised messages which were ‘menacing’ and which caused ‘annoyance, inconvenience, danger, obstruction’ etc,” he pointed out.
“These are not the standard legal expressions with definitive meaning. Whereas, the expression threat and abuse used in Sec 118A have definitive meaning.”
Instead, he pointed out, the new law has several characteristics that guard against its misuse and misapplication.
“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 injury to complainant,” he added.
He also pointed out that unlike the Indian Penal Code, which criminalizes defamation even in cases where the allegations are true, Sec 118A of Kerala Police Act applies only to allegations that the accused knew to be false at the time he was making them, and cannot be used against true allegations.
In the end, he called the new law a necessary step to curb fake news.
“Even though fake news existed earlier, it has become impossible to check or control after the advent of social media,” he pointed out.
“Fake news spreads almost instantly. Women are the main victims of fake news. Unscrupulous boys circulate morphed nude photos of girls in the neighbourhood. The politicians who couldn’t sell their gossips that X is illegitimate child, Y is having affair with Z, Nehru is this, etc have been conveniently using this medium to sell gossips,” he added.
“We have seen how minorities were accused as spreaders of coronavirus without any evidence. The people are getting slowly poisoned with communal and casteist ideas by fake stories. Therefore, legislating Sec 118A is a step in the right direction.”