Editorial: A draconian ordinance and its rollback

But the question still remains: why was it issued in the first place? To have pushed through a libel law through the ordinance route smacks of a mixture of thoughtlessness and high-handedness. For a party that is shouting from the rooftops about how the Centre is coercing the media, stifling dissent and misusing laws to suppress diversity of views, the attempt to introduce a harsh and poorly drafted libel law for the digital realm is somewhat rich. The revisions made to the Police Act were in essence a throwback to Section 66A of the IT Act (though arguably even more draconian in its vague wording), which was struck down by the Supreme Court in 2015.

The rollback has come in the face of severe pressure from the Opposition, the media, and civil rights activists to reconsider the “black law”. It was only a couple of days ago that Kerala Chief Minister Pinarayi Vijayan defended the ordinance on the grounds it was intended to check cyber-bullying in the social media space; he also said that individual freedom cannot be violated in the name of freedom of speech. While there is no doubt that cyber-bullying is a real phenomenon and that there are limits to free speech, what was the need for such a vaguely drafted law that empowered the police to interpret, and subjectively, what constitutes a defamatory post?

In the face of pressure, Vijayan went on to clarify that the law would not be used against the media, but this is neither here nor there. The freedom enjoyed by the press has no extra-constitutional protection from those enjoyed by individuals; as a result, the laws constraining free speech relate to everyone, and a clarification about how it will be used is of little use. The issue is how it could be used. The State government’s announcement that it would try and reach a political consensus on the libel provision is a fig-leaf to cover the awkwardness of having to declare it has dropped it altogether; ‘reconsider’ appears to be a euphemism for permanently mothballed.

In a legal environment where criminal defamation, which has been given up in most countries, remains constitutional, and where there is a slew of provisions – including those in the Indian Penal Code such as 153A and 295A – to punish certain forms of restricted speech, there is absolutely no case for adding more. There is enough misuse of such laws already and it is important to stress here the problem in India is not that our laws lack strong legal teeth. The issue is that we have a painfully slow judicial system, one in which convictions are low and where the process is often the greatest punishment. Ill-thought-out moves to arm the police with greater powers are no substitute for fixing the larger issues that plague the criminal justice system.