Criticizing Government is illegal in State of Kerala

Free Speech???

Kerala Government has issued an ordinance amending the Police Act whereby any act of threatening, abusing, humiliating or defaming any person is made punishable. However there is no specific definition of these words chosen from moral vocabulary. Therefore the concerned police officer will be free to define these words and make arrests as per his or her whim and fancy.

Full Text of Ordinance

ORDINANCE No. 79 OF 2020

THE KERALA POLICE (AMENDMENT) ORDINANCE, 2020

Promulgated by the Governor of Kerala in the Seventy-first Year of the Republic of India.

AN
ORDINANCE
further to amend the Kerala Police Act. 2011.

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Scope of Right to Protest in India

Shaheen Bagh Agitation was not warranted:

India, as we know it today, traces its foundation back to when the seeds of protest during our freedom struggle were sown deep, to eventually flower into a democracy. What must be kept in mind, however, is that the erstwhile mode and manner of dissent against colonial rule cannot be equated with dissent in a self-ruled democracy.

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Assault and criminal intimidation on facebook

Aggressive comment on Facebook page of Police

Whether Facebook page of the Bengaluru traffic police is a public forum meant for citizens to discuss and post their grievances and whether the comment posted on the Facebook could prima facie constitute the offence of assault and criminal intimidation?

Section 353 defines assault and is as under:

353. Assault or criminal force to deter public servant from discharge of his duty.- Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

A reading of the above provision shows that the essential ingredients of the offence under Section 353 IPC are that the person accused of the offence should have assaulted the public servant or used criminal force with the intention to prevent or deter the public servant from discharging his duty as such public servant. By perusing the materials available on record, it appears that no force was used by the appellants to commit such an offence. There is absolutely nothing on record to show that the appellants either assaulted the respondents or used criminal force to prevent the second respondent from discharging his official duty. Taking the uncontroverted allegations, in our view, that the ingredients of the offence under Section 353 IPC are not made out. Continue reading “Assault and criminal intimidation on facebook” →

Information Technology Act, 2000 as amended in 2008

Cyber Law in India:

Information Technology Act, 2000 is the law governing e-commerce, internet and Cyber laws in India. The only legal commentary on the subject has been thoroughly revised and updated and now it’s 2014 edition is available for sale as Kindle Edition.

About the Kindle eBook on Information Technology Act, 2000:

“Facebook arrests, blocking of web sites etc. wakes up to understand what is the law behind such Government action and if it was justified. The relevant law in India is Information Technology Act, 2000. This kindle book is a legal commentary on the provisions of Information Technology Act, 2000 as enacted by the Parliament of India. This statute primarily governs the law relating to Internet, Digital Communication and other such matters. This statute covers variety of new legal rights and liabilities apart from creating various authorities for enforcement of new rights and liabilities. Certain acts have been defined as offenses which are punishable with fine or imprisonment. This book, apart from the original enacted provisions of the statute also contains legal commentary on virtually every provision to assist the the legal implications of each provision. Commentary also contains reference to existing case law on the subject without confining itself to the courts of India and incorporating judicial precedents from all over the world. Where ever direct case law is not available, an anlogous provision and case law thereon has been dealt with to thoroughly analyze the provisions of this Act. This is a 2014 edition and includes a thorough commentary on the notorious provisions introduced by Amending Act of 2008. “

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Section 66-A, is a restriction upon the right of ‘Free Speech’ or ‘Freedom of Speech & Expression’ guaranteed under Article 19(1)(a) of Constitution of India. It curtails the freedom of expression by prohibiting under coercion of penal action, certain kinds of expression. However the restrictions under this provision have to meet the test of reasonableness as specified under article 19(2) Which is as under:

‘Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercises of the right conferred by the said sub-clause in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign, State, public, order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.’

Since, we shall be discussing the cases from around the globe, it may be pointed out that in USA, the freedom of speech is absolute as there is no provision in the constitution similar to article 19(2). However Supreme Court of USA has evolved several tests, one of which is the test of ‘clear and present danger’ which is similar to test of reasonableness provided in article 19(2) but it is not the same. In fact Justice Douglus of USA Supreme Court was of the view that even in USA the ‘Judges sometimes try to read the word “reasonable” into the First Amendment or make the rights it grants subject to reasonable regulation.’^¹ He also took note of the fact that ‘this limitation is strictly construed; any restriction amounting to an “imposition” which will “operate harshly” on speech or the press will be held invalid.’^²

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More extracts:

Constitutional Validity u/a 19(1)(a) — The restrictions imposed by the s. 66-A have to be tested on the anvil of objects for which it is permissible to impose the restriction u/a. 19(2) of Constitution. These can be summed up as under:

1. Interest of Sovereignty and Integrity of India,
2. Security of State,
3. Friendly relations with foreign State,
4. Public order
5. Decency or morality,
6. Contempt of court
7. Defamation or
8. Incitement to an offence.

All the above subjects are covered by specialized laws which deal with matters ex post facto. Some of above subjects are also covered by other provisions of this Act, itself. It is yet to be seen as to under which of the above 8 objects, s.66-A, seeks to achieve. At best S. 66-A can relate to decency or cyber-stalking but it does not employ these words. It would be appropriate to deal with each clause of section 66-A separately.

Clause (a) deals with an act of ‘Intimidation’ through electronic message while former is covered by IPC. Obviously c. (a) is similar in term with the c. (a) of 127 of U.K. Communications Act, 2003 in so far as word ‘menace’ is concerned. But similarity ends there itself. Obviously this clause relate to an offence of intimidation itself and not an ‘incitement to do an offence’. It may be seen that unless a message falls within one of the 8 categories specified in article 19(2) of Constitution, it would be hit by Article 19(1)(a) of the Constitution. Act of intimidation, unless it is contrary to interest of Sovereignty and Integrity of India or Security of State or Friendly relations with foreign State or in alternative it is accompanied by disturbance of public order or incitement to commit an offence or is contrary to decency or morality or amounts to contempt of court or defamation, mere menacing nature of message is beyond the legislative competence of the Parliament and is unconstitutional, being hit by article 19(1)(a).

Clause (b) starts with the word ‘false’ and thereafter employs a series of words which have different………….

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Loyalty oath as proof of innocence.

Loyalty oath for tax exemption:

Innocence: Negative burden of proof by loyalty oath.

The State of California allowed an exemption of property tax for veterans of World War II. Anyone desiring to claim the exemption was required to complete a standard form of application and submit the form with the local tax assessor. In 1954, the form was revised to add a loyalty oath which the applicant must sign which stated

“I do not advocate the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means, nor advocate the support of a foreign government against the United States in event of hostilities.”

The appellants refused to sign the oath contending the condition of requiring the oath in order to obtain a tax exemption was unconstitutional.

The Supreme Court of America ruled as under:

“…when the constitutional right to speak is sought to be deterred by a State’s general taxing program due process demands that the speech be unencumbered until the State comes forward with sufficient proof to justify its inhibition. The State clearly has no such compelling interest at stake as to justify a short-cut procedure which must inevitably result in suppressing protected speech. Accordingly, though the validity of § 19 of Art. XX of the State Constitution be conceded arguendo, its enforcement through procedures which place the burdens of proof and persuasion on the taxpayer is a violation of due process. It follows from this that appellants could not be required to execute the declaration as a condition for obtaining a tax exemption or as a condition for the assessor proceeding further in determining whether they were entitled to such an exemption. Since the entire statutory procedure, by placing the burden of proof on the claimants, violated the requirements of due process, appellants were not obliged to take the first step in such a procedure.”

Category: Free speech