Kerala govt set to formally bury the controversial amendment to Police Act

The Kerala government on Tuesday decided to revoke a controversial amendment brought to the Police Act by way of an ordinance after it triggered a political storm and widespread censure by the civil society in general. A Cabinet meet here on Tuesday agreed upon withdrawing the ordinance which was resorted to insert Section 118A in the Act so that police could be given wide powers purportedly in a bid to curtail defamatory content against women on social media.

The repeal ordinance, which will bury the controversial amendment,will now be sent to the Governor for approval. A new amendment to prevent cyber bullying would be introduced but only after detailed deliberations. On Monday, Kerala Chief Minister Pinarayi Vijayan had announced the government has decided not to implement the contentious provision.

The amendment envisaged providing for up to three years jail term to those behind defamatory social media posts.

The Chief Minister's U-turn seems to have been forced by the stern stand taken by the top leadership of the CPM. Even while leaders in Kerala continued to defend the what has been unanimously called a draconian piece of legislation, the CPM general secretary Sitaram Yechury told the media on November 23 that the amendment went against the ideals of the CPM.

Politburo members like M A Baby also, even if indirectly, hinted that the decision to promulgate an ordinance was made without consultations within the party.

The official version was that the amendment was brought in to prevent cyber bullying of women and children. As it turned out, the amendment gave blanket powers to the police to take suo motu action against anyone expressing or publishing anything that would humiliate, abuse or defame a person or a class of persons.

The expressions used in the amendment, it was felt, was highly vague and as open-ended as those in Section 66A of the Information Technology Act, 2000. Section 66A was thrown out by the Supreme Court in 2015 for being "vague" and "over-broad". Legal experts said the same fate would have befallen the Kerala amendment.

More disturbing was the the fact that the new amendment allowed the police to take action even if the offending material was not even published or disseminated.

Further, it was said the Kerala amendment, by making the violation cognisable, went against the Defamation Act, a central law. Under the defamation act, a case can be taken only if there is an aggrieved party. The Kerala Police amendment would have allowed the police to arbitrarily initiate action, without having to wait for anyone to come with a complaint.

The Kerala Police Act Amendment ordinance was signed by Governor Arif Mohammad Khan on Saturday. In two days, the government decided to put on hold the notification issued thereafter as the move was widely deemed to be an assault on freedom of expression and media.

The section stipulates either imprisonment for up to five years or a fine of up to Rs 10,000 or both to those who produce, publish or disseminate content through any means of communication with an intention to intimidate, insult or defame any person through social media.

Multiple petitions in High Court

Earlier on Tuesday, the state government had assured the Kerala High Court that no FIRs would be registered on the basis of the new aspect of the legislation. The government gave the assurance while a division bench, comprising Chief Justice S Manikumar and Justice Shaji P Chaly, was considering a batch of petitions, challenging the constitutional validity of the amendment.

"No coercive action will be taken on the basis of the newly inserted Section 118A in the Kerala Police Act, 2011, which has been put on hold," the Additional Advocate General informed the court.

When the court pointed out that the ordinance has been issued, the government assured that no FIRs would be framed on the basis of the newly incorporated amendment.

The court recorded the government submission and adjourned the matter for Wednesday for consideration.

Pleas by BJP, RSP leaders

BJP Kerala state unit chief K Surendran and RSP leader Shibu Baby John had on Monday filed separate pleas in the High Court, challenging the constitutional validity of the amendment.

In his plea, Surendran sought to declare the newly inserted Section 118A as unconstitutional, void and inoperative and hence it need to be struck down. He submitted that the new provision "curtails the freedom of speech and expression conferred under the Constitution of India".

Noting that even positive criticism or opinion of expression could be interpreted to be an offence under the provision, he alleged that "this is against the basic principle of the criminal justice system.

In their Public Interest Litigations, RSP leaders Shibu Baby John, N K Premachandran and A A Azeez sought to declare Section 118A as unconstitutional since it is "violative of Articles 14, 19 (1) (a) and 21 of the Constitution of India."

They also submitted that Section 118A suffers from inherent and incurable vagueness.

Noting that expressions like "humiliating", "threatening" and "abusing" are not defined, they submitted that leaving such expressions to the subjective interpretation of individuals meant that even diligent and conscientious citizens cannot know with certainty whether their acts of expressions could run afoul of Section 118A.

They submitted that offences under the section have been made cognizable. So the subjective personal views and unguided interpretation by individual police officials, who are not trained to exercise judicial functions on whether a particular act constitutes an offence under Section 118A or not, would decide whether serious consequences such as arrest should follow.

Besides Surendran and Shibu Baby John, the court also received a batch of petitions challenging the controversial amendment to the Police Act.