[Breaking] No Adverse Action Or Registration Of FIR Based On Section 118A; Ordinance Being Reconsidered : Kerala High Court Records Govt Submission

The Kerala High Court on Tuesday recorded the submission made by the Additional Advocate General of Kerala that there will be no adverse action, registration of FIR or suo moto cognizance based on the newly introduced controversial provision Section 118A of the Kerala Police Act.

A bench comprising Chief Justice S Manikumar and Justice Shaji P Chaly also recorded the submission of the AAG KK Ravindranath that the Government is taking steps to reconsider the Ordinance.

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 Government was reconsidering the issue and sought adjournment till day after tomorrow.

Then the Chief Justice observed that the police can continue to register FIRs since the Ordinance is in force, despite the stand of the government. The bench asked the AAG if it can record the submission that there will be no coercive action on the basis of Section 118A till the government is reconsidering the issue.

When the AAG agreed, the bench passed the interim order to record the submission.

The bench adjourned the hearing on the petitions till tomorrow to await further developments in the issue.

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.

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.

The critics also expressed concern over the fact that the offence has been made cognizable

In an article written in LiveLaw, former Kerala Law Secretary and former Professor at National Judicial Academy B Hareendranath said :

"Section 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".

"Section 118A is an attempt to resurrect the same approach to regulation of free speech that had been declared to be unconstitutional by the Hon'ble Supreme Court in Shreya Singhal. Many of the expressions used in Section 118A are only cosmetically different from the expressions which were already considered and rejected as vague in Shreya Singhal," a petition filed against the provision before the Kerala High Court stated.

Following massive public outrage against the provision, the Kerala Chief Minister Pinarayi Vijayan said on Monday that Section 118A will not be implemented.

"When the amendment was notified, there are varied kinds responses from the society. Doubts were raised by those who are supporting the left democratic government and those who are standing for protection of democracy. Hence it is decided not to implement this notification. Appropriate actions will be taken only after a detailed discussion in the assembly, after hearing all the parties", said the Chief Minister in a press note.

The provision was challenged as ultra vires the Constitution by MP and former Minister NK Premachandran, former Minister and RSP Leaders Shibu Baby John and AA Azeez ,Kerala State BJP President K Surendran and few other individuals.

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