After the Kerala Governor gave his assent to the controversial ordinance amending the Kerala Police Act, 2011 to introduce Section 118A, four politicians, an activist, a law student, and a lawyer have moved the Kerala High Court for quashing the provision.
The provision, ostensibly aimed at encouraging courteous speech online and over various media, has been at the receiving end of criticism for the vagueness of its provisions, and its eerie similarity to Section 66 A of the Information Technology Act, 2000.
This new provision makes any expression, publication or dissemination of threatening, abusive, defamatory or humiliating content made through any mode of communication punishable if the person does it knowing it to be false and damaging to reputation or mind of another person. A person, if convicted for the offence, can be punished with imprisonment of upto 3 years or fine of Rs. 10,000 or both
This is how the provision reads:
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 Court is expected to take up the petitions for hearing in the morning today.
Speaking to Bar & Bench, an advocate for one of the petitioners asserted that the challenge would continue unabated unless the Governor withdraws the ordinance. Article 213 (2) (b) is practically the only way a by which State ordinance may be withdrawn without it going to the Legislative Assembly, he pointed out.
Below is an overview of the major grounds raised by the petitioners.
All the petitions have in one or the other way raised this ground - that the provision is vaguely worded. An interesting question raised in one of the petitions in this regard is "who defines what is an injury to the mind," to buttress the case of how the terminology adopted is inherently vague.
The terms used in the provision is open to subjective interpretation, another petition states.
Dresses a private wrong as a criminal act
The petitions take issue with the fact that the provision has been made cognizable, that is, permitting a police officer to arrest a person without a warrant.
It is the petitioners' case that similar offences, which are essentially wrongs committed by one person upon another (such as defamation, intimidation, etc.) are already penalised by the Indian Penal Code and are, importantly, non-cognizable.
One of the petitions states the provision jeopardises the doctrine of proportionality.
Violates Article 19(1)(a)
All the petitioners challenge Section 118A as violative of Article 19(1)(a) of the Constitution on the ground that it amounts to an unreasonable restriction on free speech and expression. They have pointed out that in Shreya Singhal v. Union of India, the Supreme Court declared that probability of certain categories of speech being an insult, inconvenience and nuisance cannot be a reasonable restriction on speech.
Resurrection of Section 66A of the Information Technology Act, 2000
The Kerala Government itself had admitted in a press release that the new provision was being introduced to fill the legislative void created due to Supreme Court striking down Section 66-A of the Information Technology Act, 2000.
The petitions have highlighted the same contending that the terms used in the legislation, the overall vagueness of the provision, and the offence penalised bear similarity to Section 66A and the erstwhile section 118(d) of the Kerala Police Act which had also been also struck down in Shreya Singhal case.
Outside the scope of the legislation
Another ground raised is regarding how the provision is not in consonance with the object of the Kerala Police Act. By definition, the Kerala Police Act seeks to regulate and govern the police force in the State. Penalising an essentially private offence in an Act that is meant to regulate the police force goes beyond the legislative competence, it has been submitted.
One of the petitions was filed by BJP State President K. Surendran through Advocates P. Sreekumar and the lawyers at Attorneys' Alliance, Kochi. United Democratic Front (UDF) politicians Shibu Baby John, NK Premachandran and AA Azeez, also filed petitions, through Advocate Santhosh Mathew and lawyers at Ninan & Mathew Advocates, Kochi.
Other petitions have been moved by a Delhi-based lawyer Advocate Jojo Jose, through Advocates Johnson Gomez and Gajendra Singh Rajpurohit of L Expertians, lawyer-activist Anoop Kumaran and Advocate Prashanth Suguthan of Software Freedom Law Center (SFLC), and law student Nandini Praveen through Kaleeswaram Raj and Associates, Kochi.
Another petition has been filed by Advocate Sunil Kumar K.G. through Advocates C.G. Rajkumar and Jose Antony as well.