Court Kills Part of Kerala Police ActSection 118 (d) Ruled Unconstitutional
In a landmark judgment, the Supreme Court of India has struck down Section 118 (d) of the Kerala Police Act, declaring it unconstitutional for violating the fundamental right of freedom of speech and expression.
Section 118 (d) of the Act declares as a cybercrime the sending, by means of a computer resource or any electronic device or a communication device, any information that is deemed grossly offensive or that has a menacing character. Such crimes were punishable by fine and with imprisonment for a term which could extend to three years.
In striking down Section 118 (d) of the Act, the court said it is akin to the recently struck down Section 66A of the Information Technology Act, which called for arrests for posting of online content deemed annoying, offensive or inconveniencing.
Some cyberlaw experts condemn the court's latest decision and argue that instead of scrapping Section 118 (d), amendments should be made to re-enforce the power of law enforcement officials to curb cybercrime.
"The judgment is extremely short-sighted," says Coimbatore-based S N Ravichandran, cybercrime investigator and member of the Cyber Society of India. "This is probably one of the few cases where the petitioner has presented facts out of misconception and presumption, the respondents have responded without conviction and being ignorant of the subject, and the judgment has been delivered without applying one's mind."
Why Section 118 (d) Was Struck Down
Some say the verdict pronounced by the bench of justices J Chelameswar and R F Nariman was the culmination of constitutional challenges to various provisions of the IT Act raised by several separate writ petitions, all of which were heard together by the court.
"Section 118 (d) of the Kerala Police Act is struck down as being violative of Article 19(1) (a) - that secures to every citizen the freedom of speech and expression not saved by Article 19(2) - which imposes "reasonable restrictions" on the exercise of the right to freedom of speech and expression "in the interest of the public," the bench said. "Section 118(d) also violates Article 19(1) (a) and not being a reasonable restriction on the said right and not being saved under any of the subject matters contained in Article 19(2) is hereby declared to be unconstitutional."
Some experts argue that while there is nothing inappropriate about the section, there are gaps in understanding and usage of Section 118 (d), and that the law is subject to poor interpretation and execution.
Because section 118 (d) of the Kerala IT Act was challenged by several writ petitions, the court took up the petitions and section and scrapped it, declaring it "unconstitutional." Similar sections exist in the states of Tamil Nadu and Karnataka, under the Information Technology Act, 2000. But their sections did not come up for discussion at the court, as there were no petitions filed against them.
Says Calicut-based Dr. P Vinod Bhattathiripad, a cyberforensics expert, "This law was passed in the Indian Parliament in December 2008, in cognizance of great parliamentarians; such sections exist in every IT Act across various countries. The issue is not about freedom of expression, but the language used that is objectionable to the law, which deserves appropriate punishment."
Experts say section 118(d) had levied certain restrictions on individuals posting obscene texts, images, audio and videos for fear of a three-year imprisonment. But with this decision, they can escape punishment.
Chennai-based V Rajendran, president of Cyber Society of India, expects law enforcement agencies will find it difficult to curb cyber stalking as a result of the verdict. "The adverse impact is that if a person repeatedly sends SMS or emails (leaving aside the obscene or sexually explicit which comes under Sec 67) with the intention to harass, he now can boldly do so, as the police are not able to take stringent action against it even if a first information report is registered," he says.
Similar to Section 66A of IT Act 2008, Section 118(d) also says the investigating officer should obtain the permission of his superior officer not below the rank of Inspector General of Police to make an arrest.
Experts also say that Section 118 (d) has not been tested and clarified in court, unlike the Indian Penal code or Criminal Procedure Code, which have been clarified and assigned appropriate punishments.
What Are the Options?
N Vinayakumaran Nair, head of Hi-Tech Cyber Cell, Kerala Police, says, "Now that the section is scrapped, the question arises as to what happens to the pending complaints - which need immediate attention and action and under which section we register new complaints."
Nair says there are approximately 200 cases pending under Section 118 (d) that are quite sensitive. "I understand that the state director general of police and cybercrime branch are in consultation with legal authorities to arrive at a decision to use Section 500 and Section 506 under IPC for registering cybercrime complaints, as these deal with defamation and criminal conduct, respectively."
Ravichandran says one feature of the Act that has escaped the attention of all its critics is that Section 66 A itself can be used against a complainant. "A better option would be to introduce a provision which will penalize those who misuse the Act," he says.
Rajendran says other sections, especially Sec 69 and 79, can be used as a replacement where monitoring, intercepting or blocking of websites is not an issue.
However, the challenge for the police groups would be to prove the cyberharassment cases and collect evidence, Rajendran says.
Bhattathiripad expects that Sections IPC 499 and IPC 500 can in some way replace 66A and 118 (d) of the Kerala Police Act. "The police should continue to register cases against cybercriminals and take stringent action under various other sections of the IT Act and IPC to ensure control on cybercrime activities."