From Promulgation Towards Withdrawal: The Kerala Police (Amendment) Ordinance, 2020

Synopsis

This article is a reflexive piece on the latest Amendment Ordinance, pertaining to the Kerala Police Act of 2011, promulgated by the Governor of the State sir Mohammad Arif Khan on November 21st, 2020. The article aims to offer the depth of the Amendment Ordinance, further proceedings with the Ordinance, critical appraisal and suggestive measures thereto.

Introduction

On the 21st day of November, the Governor of the state of Kerala sir Arif Mohammad Khan promulgated an Ordinance, considering the growing cases of cyber defamation and the almost unfettered online freedom with regard to the content on social media majorly, since the Legislative Assembly is not in session. The said Ordinance brought about an amendment in the Kerala Police Act of 2011 adding a contentious provision to it qua Section 118A. The Ordinance was viewed by the liberalists and activists and even various political leaders as draconian and a threat to the fundamental freedom of press enshrined under Article 19 of dearly held Constitution. The backlashes and petitions in Kerala High Court seeking withdrawal of the impugned Ordinance grew and as a result, the High Court of Kerala decided to preside over the hearings of the five petitions challenging the Kerala Police (Amendment) Ordinance, 2020.

The Kerala Police (Amendment) Ordinance, 2020

The Governor of Kerala, Mr. Arif Mohammed Khan issued an Ordinance on November 21st, 2020, since the Legislative Assembly of the state was not in session, to amend the Kerala Police Act, 2011 (8 of 2011), namely, the Kerala Police (Amendment) Ordinance, 2020 (Ordinance No. 79 of 2020).

The aforementioned Ordinance introduced amendments to two Sections of the earlier Kerala Police Act of 2011, i.e., Section 118 and Section 125. Section 118 provides for penalty for causing grave violation of public order or danger. Section 118 A is added after the said Section qua the aforementioned Ordinance.

Section 125 provides for cognizable offences and bailable offences under the Kerala Police Act of 2011 and contains further provisions thereto.

Amendment to Section 118

The Amendment Ordinance inserted Section 118A furthuring Section 118 in the principal Act, namely, the Kerala Police Act, 2011.

The newly inserted Section 118 A reads as hereunder:

Section 118A: Punishment for making, expressing, publishing or disseminating any matter which is threatening, abusive, humiliating or defamatory. –

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.

Amendment to Section 125

The amended Section 125 of the aforementioned Act reads as hereunder:

Cognizable offences and bailable offences. –

(1) Offences under Sections 116, 117, 118, 118A and 119 of the Act shall be cognizable and bailable and an offence under Section 115 shall be cognizable and non – bailable.

(2) Notwithstanding the provisions of sub-section (1), a police officer shall have the power to arrest a person only if, -

(a) His arrest is necessary to prevent, or not to continue any offence, or
(b) It is manifestly evident that locating such person subsequently is not possible, or
(c) Such person is likely to hurt himself or any other person, or
(d) There is any special and emergent circumstances warranting the arrest.

(3) All other offences under this Act shall be non cognizable and bailable.

Provided that a police officer present at the spot may remove a person temporarily for the purpose of preventing the continuance of an offence in his presence.

Impact of the Ordinance

The impugned Ordinance was received in the state of Kerala with severe backlash from various segments of the society from activists to political leaders. The Ordinance was widely viewed as a brazen assault on the freedom of speech enshrined under Article 19(1)(a) of the Indian Constitution. Following are the major arguments put forth by those anti the new amendment:

I. The impugned amendment is Ultra Vires the Indian Constitution –

The Amendment Ordinance brought about a new provision under Section 118A which is remniscent of Section 66A of the Information Technology Act, 2000 and Section 118(d) of the Kerala Police Act itself, both of which were struck down by the Apex Court of the Country as unconstitutional.

In the case of Shreya Singhal vs Union of India, 2015, the Supreme Court had struck down both the aforementioned clauses on the grounds that the restrictions imposed under these provisions on the freedom of speech were not reasonable and neither were saved under any of the matters contained under Article 19(2).

Section 66A of the IT Act read as under-

66A: Punishment for sending offensive messages through communication service, etc. – Any person who sends, by means of a computer resource or a communication device,-

(a) any information that is grossly offensive or has menacing character; or

(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device; or

(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages,

Shall be punishable with imprisonment for a term which may extend to three years and with fine.

Explanation. -For the purpose of this section, terms “electronic mail” and “electronic mail message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.

Section 118(d) of the Kerala Police Act read as follows –

118(d): Any person who causes annoyance to any person in an indecent manner by statements or verbal or comments or telephone calls or calls of any type or by chasing or sending messages or mails by any means; shall, on conviction be punishable with imprisonment for a term which may extend to three years or with fine not exceeding ten thousand rupees or with both.

A surface reading of the above two provisions and the impugned Section 118A reveals a starkingsimilarily. Section 118A is just an attempt to introduce the ultra vires Section 118(d) slyly. The three sections clearly have three things in common- the vagueness, the overbreadth, and the violation ofArticle 19(1). For the reasons enunciated in the Shreya Singhal’s case, Section 118A of the Kerala Police Act is Ultra Vires the Constitution of India.

II. Section 118A is a weapon for potential abuse and rumblings of a police state

The impugned Section has without any debate, a potential for major abuse especially against the social media. The police would indirectly have power to make arbitrary arrests which is is notoriously known for already.

Furthermore, since cyber space has no jurisdictional limits, a Keralite sitting anywhere could file a case of cyber distress under Section 118A in his home state against any person even someone living in the opposite corner of the country.

It must also be kept in mind that the safeguards that the Section provides are already with the citizens of the country under various other Sections –

1. Section 67 of the IT Act provides for punishment for publishing or transmitting obscene material in electronic form;

2. Section 506 of the IPC enshrines punishment for criminal intimidation;

3. Section 509 of IPC deals with any word, gesture or act intended to insult the modesty of a woman;

4. Section 500 of IPC penalises defamation; 5. Section 119(b) of the Kerala Police Act makes taking photographs or recording videos or propagating them at any place in a manner affecting the reasonable privacy of women punishable.

Apparently, there is per se no furthur requirement of another law in this regard but effective and reasonable implementation.

Involvement of the Kerala High Court

Due to the onset of statewide protests, Mr. PinarayiVijayan, the Chief Minister of the state of Kerala issued a Public Statement announcing that no adverse action would be taken based on the newly added Section 118A unless the same is subjected to detailed deliberations in the Kerala Legislative Assembly.

The onset

Five petitions were filed in the High Court of Kerala challenging the said Ordinance dated 21/11/2020. A bench of Chief Justice S. Manikumar and Justice Shaji P Chaly took up the petitions on 24th November, 2020.

First hearing dated 24/11/2020

Additional Advocate General Ravindranath KK informed the Court that the Government is reconsidering the matter and sought time to file an official communication regarding the matter. The petitioners argued that the author of the Ordinance must himself act to withdraw the same under Article 213 of the Constitution and that merely putting it in obeyance is insufficient. Until withdrawal, it was pointed out that the Ordinance would be in effect.

The state however assured the Court that it was reconsidering the contentious section and its introduction in the Act. The Kerala High Court passed an interim order on 24th November, 2020, making it clear that no adverse action, suomotu case or FIR shall be registered invoking the controversial ordinance which introduced Section 118-A recently to the Kerala Police Act, 2011, until the State Government takes a decision on its implementation.

Second hearing dated 25/11/2020

The Left government of CM PinarayiVijayan decided to withdraw the provision in the face of mounting criticism and intimated the Court of its intention with regard to the same. The state has already written to the Governor Mohammad Arif Khan recommending the promulgation of an Ordinance revoking the earlier Amendment Ordinance.The Additional Advocate General produced a letter addressed to the Senior Government Pleader at the High Court in that regard.

The AAG submitted that the Governor was well within his powers to revoke the contentious Ordinance under Article 213(2)(b) of the Constitution which allows the Governor to withdraw a promulgated Ordinance.

Counsel for one batch of petitioners, Advocate Santosh Mathew contended that the Ordinance can be withdrawn only with due compliance of Article 213(2) which mandated that:

1. The Ordinance shall be placed before the Legislative Assembly for discussion, and then
2. A Resolution shall be passed thereto, and only then
3. The Governor could withdraw the Ordinance

The bench recorded the State’s submissions regarding withdrawal of the Ordinance and adjourned the matter for three weeks.

Conclusion

While the Kerala government has said the ordinance won’t be implemented following all the criticism it has received, it has not yet officially withdrawn the amendment, which would require a gazette notification.Until the ordinance is withdrawn, it can still technically be used to file FIRs against people accused of violating the provisions of Section 118A of the Kerala Police Act. As a result, the legal challenges in the Kerala High Court can still proceed – the high court can when hearing these pleas impose a stay on the operation of the ordinance.

Keeping up with the traditions set in the case of Shreya Singhal vs Union of India, the citizenry is hopeful that the Kerala High Court would ensure the withdrawal of the impugned Ordinance as soon as possible and with due compliance of the Constitutional provisions and procedures established by law.