The Government of Kerala has introduced an ordinance to insert section 118-A into Kerala Police Act. As per the amendment, any person who is found to send or create any content that is offensive or intended to offend or threaten another person may face three years in prison, a fine of Rupees 10,000, or both. This new amendment against social media users was criticized by most of the activists, lawyers and politicians and several petitions were also filed before the Kerala High Court challenging this amendment. The author will discuss the whole story and timelines of the newly amended Kerala Police Act, 2011.
PREFACE
The legal challenges for section 118A of the Kerala police act, 2011 were not coming to an end or reaching to a conclusion. Firstly on 21st Nov, 2020, the government of Kerala came up with Kerala Police (Amendment) Ordinance, 2020 to incorporate section 118A in the Kerala Police Act which makes intimidation, defamation, or insulting of any person an offence punishable with imprisonment of term up to Three years and/or up to Rupees. 10,000/- fine. Honorable Governor of Kerala Mr. Arif Mohammad Khan has signed this ordinance pertaining to implementation of Section 118A of the Kerala Police Act. Later on, the honorable Chief Minister of Kerala, Mr. Pinarayi Vijayan on Monday 23rd Nov, 2020 has announced that the provisions of Section 118A of the Kerala Police Act, 2011 will be not implemented in his term of ruling the state. It was clarified by Honorable Chief Minister that, the object of introducing the provisions of Section 118A of Kerala Police Act was to overcome or reduce the harassment faced by many individuals on Social media platform. Specifically women or transgender community has faced lot of harassment through social media platforms. It was said that the provision was inserted by way of ordinance and met with so much criticism; therefore separate decision will be taken after having proper discussion in the state assembly.
What does the provision says?
THE PROVISION STATES THAT
“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.”
This provision set out the punishment which is either imprisonment up to 3 years or a fine up to Rupees. 10,000 or both to those who makes, expresses, publishes or disseminates content through any means of communication with an intention to intimidate, insult or defame any individual through social media.
This offence was considered to be cognizable and Bailable.
Objective of the provisions
Last month the recommendation was made to the Governor of Kerala by Kerala Cabinet to introduce this ordinance. It was stated that the government is concern about the increasing incidents of crimes arising out of social media platform. According to Kerala Government, the existing laws are not sufficient to overcome with this problem and after struck down of section 66A of the Information Technology Act and Section 118(d) of the Kerala Police Act by the honorable Supreme Court, such ordinance was in dire need to be implemented. The main objective of introducing this amendment into the Kerala Police Act is to overcome with the problem of false allegations made through the social media platform which obviously harm the liberty & dignity of the individuals. Many complaints were registered from different sections of the society regarding this problem arising out of social media platform. The victims are mainly from the women and transgender section. This has affected the society at a considerable level. Not only victims, but their families are also affected due to this. Victims and their families sometimes chose to commit suicide to get away from this problem. Even media and other sections of the society are in favor to enforced this law and get it implemented in the state as soon as possible.
SCENARIO AFTER AMENDMENT
Right after the amendment introduced on Saturday i.e. 21st Nov, 2020, different kinds of responses were received from the society. On the ground of saving the democracy, many questions were raised to this amendment by the people who support left democratic government, many social activists and political parties’ leaders were criticizing this ordinance passed by Kerala government saying that it would keep a check on free speech of the individual. Therefore it was decided that the notification will be implemented as of now and appropriate decision will be taken after having the detailed discussion with all the parties.
The Chief Minister of Kerala also made a request through press note that, any person who is engaged in making false allegations, shall be restrained and cautious from doing that.
GROUNDS OF CHALLENGING THE SECTION 118-A OF THE KERALA POLICE ACT
The ordinance was later on challenged, despite the assurance given by Honorable Chief Minister of Kerala that the provision of Section 118A would not be implemented. Four Politicians, an activist, a law student and a lawyer have moved the Kerala High Court to challenge this newly introduce provision and seek to quash it.
No clarification on wordings: The first ground through which the petitioner has challenged this particular ordinance that, the words used in the provision are not clearly defined. As written in the provision “injury to the mind”, but nowhere the definition of injury of mind is mentioned. Who will define the injury to the mind?
Already covered in Indian Penal Code (IPC): It was stated by the petitioners that the provision is made cognizable, which means Police can arrest a person without issuance of any warrant. But wrongful acts like defamation, intimidation are penalized under Indian Penal Code and are non-cognizable in nature.
Violation of article 19(1)(a): The petitioners unanimously challenged the provisions of section 118A of the Kerala Police Act by saying that, it will lead to unreasonable restriction on free speech and expression which is a Constitutional right of the citizen of this country.
The reference of the decision passed by Honorable Supreme Court in Shreya Singhal vs Union of India was taken by the petitioners where Supreme Court pointed out that probability of certain categories of speech being an insult, inconvenience and nuisance cannot be a reasonable restriction on speech. The Honorable Supreme Court in Shreya Singhal vs Union of India held that Section 118(d) of the Kerala Police Act is violative of article 19(1) (a) of the Constitution of India. It was observed by the court that the offence of ‘causing annoyance in an indecent manner’ suffers from the same type of vagueness and over breadth. The court had said that, the penalty created for causing annoyance in an indecent manner in pith and substance would fall within Entry 1 List III which speaks of criminal law and would thus be within the competence of the State Legislature.
Reactivation of Section 66A of the Information Technology Act, 2000: It was also said by the petitioners that, the government of Kerala has itself admitted that the new provision was being introduced to fill the gap of section 66A of the IT Act, 2000. The petitioner contended that, in Shreya Singhal case, when the Supreme Court has already struck down the section then there is no need to introduce this section which are of similar nature with Section 66A of Information Technology Act, 2000.
Not in the scope of legislation: The last ground on which this provision was challenged by the petitioners that, the newly introduced provision is not in consonance with the object of Kerala Police Act. The Kerala Police Act is made to administer and regulate the police force in the state. By the way of this provision, police may get the power beyond the legislative competence.
WHAT NEXT?
After several criticisms from different section of the society the CPM led LDF government on 24th Nov, 2020 decided to bring out an ordinance to withdraw the controversial amendment to the Kerala Police Act. The Cabinet sat in the afternoon of 24th Nov, 2020 and recommended the Honorable Governor of Kerala Mr. Arif Mohammed Khan to issue an ordinance to withdraw Section 118A of the Kerala Police Act which got his assent on 21st Nov, 2020. On Tuesday 24th Nov, 2020, the High Court of Kerala in its interim order held that, no adverse action, suo motu case and FIR would be registered under this section until the government reviews it from its end or take decision on it.
Petitions challenging this ordinance were heard before the Kerala High Court. Bench of Chief Justice S Manikumar and Justice P Chaly took up the petitions and held that no adverse action on the basis of this section would be taken. Additional advocate general Ravindranath KK appeared before the court on behalf of government and informed the court that government was reconsidering the matter. He was looking for time until day after tomorrow to file an official communication on the issue. The court raised the question that FIRs could be registered based on the new section since the ordinance had already come in force. The Additional Advocate General assures the court that no coercive action would be taken by government on the basis of this section till the government reconsiders this issue. The honorable court recorded the submission made by state Additional Advocate General KK Ravindranath that there will be no adverse action, registration of first information reports or suo moto cognisance based on the newly-introduced amendment to the state Police Act.
Revocation of Ordinance
An ordinance was proposed to repeal the ordinance to insert Section 118A of the Kerala Police Act, which itself is a very unique practice where an ordinance is promulgated to repeal or nullify another ordinance. It may be seen that, ordinance is issued to repeal or nullify acts, but issuing of ordinance to repeal ordinance is very rare to be seen. According to article 213(2) of the Constitution, the ordinance remains in force for the period of six weeks from the time when assembly passes a resolution disapproving the same. To revoke an ordinance before the said expiry period, article 213(2) (a) says that a resolution disapproving it has to be passed by the legislative assembly and agreed by the legislative council. Another way of repealing the ordinance before the said expiry period is mentioned in article 213(2) (b) where it is written that, the ordinance may be withdrawn anytime by the Governor.
On 25th November, 2020, Kerala State Cabinet has decided to write to Governor of Kerala Mr. Mohammad Arif Khan to withdraw this particular ordinance which criminalized certain classes of publications and communication. After due consideration and keeping all the scenarios in mind, the honorable governor of Kerala signs the ordinance on 25th Nov, 2020 to withdraw the controversial section 118-A of Kerala Police Act. The governor of Kerala has exercised the power given under article 213(2) (b) of Indian Constitution, which empowers the Governor to anytime withdraw the ordinance.
SUMMING UP
It is to conclude that, after pointing out the constitutional validity of this particular amendment on the grounds of unreasonable restriction to free speech and expression, it has been decided by the Government of Kerala to withdraw this provision from Kerala Police Act. On 25th Nov, 2020 the Kerala State Cabinet has already informed the Kerala High Court regarding withdrawal of this particular section and also decided to write this to the Governor of Kerala. The Governor of Kerala by exercising the power given under article 213(2) (b) of Indian Constitution signs the ordinance on 25th Nov, 2020 to withdraw the particular ordinance of section 118-A of Kerala Police Act. The whole story of Section 118-A of Kerala Police Act took a very short span of time to get settled.