No adverse action to be taken u/s. 118A of Kerala police act, ordinance being reconsidered

THE KERALA POLICE (AMENDMENT) ORDINANCE, 2020

• The Governor of Kerala, Mr. Arif Mohammed Khan promulgated an Ordinance on November 21st, 2020 to further 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 Act of 2011, i.e., Section 118 and Section 125 of the Kerala Police Act, 2011.
• Section 118provides 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

• TheAmendment Ordinance inserted Section 118A following Section 118 in the principal Act, namely, the Kerala Police Act, 2011.
•  The newly inserted Section 118 A reads as hereunder :

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

Whoevermakes, 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. –

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, -

His arrest is necessary to prevent, or not to continue any offence, or

(b) It is manifestly evident that locating such person subsequently is notpossible, 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.

EFFECT OF THE KERALA POLICE (AMENDMENT) ORDINANCE, 2020

• Section 118A creates an offence which is vague and over board, and, as a result, Ultra Vires the Constitution under Article 19(1)(a) and not saved by Article 19(2).
• The words in the Section 'through any kind of mode of communication,' encompasses print media as well. The Section suffers from the vice of procedural unreasonableness.
• Unlike criminal defamation under Section 500 of the Indian Penal Code, the safeguards available under Section 199 Cr.P.C would not be available for a like offence committed under Section118A.
• Such absence of safeguards in Section 66-A of the Information Technology Act, was noticed in the case of Shreya Singhal v. Union of India by the Supreme Court and the provision was struck down as unconstitutional. The very same unconstitutionality stains Section 118A of the Kerala Police Act.
• Mr. B. G. Harindranath, former Law Secretary, Government of Kerala, has opined thatSection 118A of the Kerala Police Act is neither necessary nor conducive to the best democratic traditions of the State. It would therefore be in the best of traditions that the Kerala Government has a thorough relook at the constitutionality and the pressing necessity of Section 118A.

PROTESTS AND PETITIONS

• The newly Amended Ordinance received instant backlash from the liberals and activists who feared that the Ordinance would curb the Right to Free Speech. Amid protests and backlash,Kerala CM Pinarayi Vijayan issued a PublicStatement intimating that no adverse action based on s. 118A shall be taken until the impugned Ordinance is subjected to detailed deliberations in the Kerala Legislative Assembly.
• Five petitions were filed challenging the impugned amendment in the Kerala High Court. A bench of Chief Justice S. Manikumar and Justice Shaji P Chaly took up the petitions on 24th November, 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 not sufficient. Until withdrawal, it was pointed out that the Ordinance would be in effect.

DECISION OF THE KERALA HIGH COURT

• The Kerala High Court passed an interim order on 24th November, 2020, making it clear that no adverse action, suo motu 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.
• The matter has been posted for further consideration today, when the State is expected to file its official communication.

What do you think about the Amendment Ordinance and Court’s decision? Let us know in the comments section below!