Cabinet Decided To Recommend Governor To Withdraw Ordinance On 118A of Kerala Police Act: Govt. Informs Kerala High Court

The Kerala High Court on Wednesday recorded the submission made by the Additional Advocate General of Kerala that the Cabinet has decided to withdraw the controversial Amendment to Kerala Police Act introducing Section 118A of the Act.

Recording this submission, the bench comprising Chief Justice S Manikumar and Justice Shaji P Chaly adjourned the petitions. 

The bench was considering a batch of petitions which challenged the Ordinance as unconstitutional for being an unreasonable restriction on free speech on account of its vagueness and subjectivity.

When the matter was taken up, the AAG submitted that the Cabinet has decided to recommend to the Governor to withdraw the Ordinance with effect from 21.11.220.

Advocate Santhosh Mathew, the counsel appearing for one of the petitioners, submitted that the procedure in 213 (2) (a) and (b) of the Constitution is to be followed for withdrawal of Ordinance.

"We presume that the Government will follow the procedure" responded the Bench.

The Ordinance brought purportedly to control fake news had come under severe criticism from politicians, civil society groups and general public for employing vague and subjective terms to give police power to take action against online and offline content.

Yesterday, the Court had recorded the submission of the AAG that there will be no adverse action, registration of FIR or suo moto cognizance on the basis of Section 118A till the Government takes a decision on revoking it.

The provision stipulates either imprisonment for up to three years or a fine of up to Rs 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 person through social media, knowing it to be false.

"118 A. 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"

The provision was criticized as highly vague and subjective and also as an attempt to circumvent the Shreya Singhal judgment, whereby the Supreme Court had held that Section 118(d) of Kerala Police Act (a similar provision) violated right to free speech under Article 19(1)(a) of the Constitution of India.