Kerala Police Act: Slew of petitions filed in High Court challenging Constitutional validity of amendment

Section 118A of the Act provides punishment for making, expressing, publishing or disseminating any matter which is threatening, abusive, humiliating or defamatory.

Published: 23rd November 2020 12:45 PM  |   Last Updated: 23rd November 2020 12:56 PM   |  A+A-

Kerala High Court

Kerala High Court (File Photo| A Sanesh, EPS)

By Express News Service

KOCHI: BJP Kerala president K Surendran on Monday approached the Kerala High Court seeking to quash the amendment in Kerala Police Act that gave free-hand to the police to stop humiliating, abusing and threatening individuals through any content and disseminated the same through any mode of communication.

Revolutionary Socialist Party leaders Shibu Baby John, NK Premachandran and AA Azeez have also filed a petition challenging the Constitutional validity of Section 118A and seeking for a declaration that this amendment is unconstitutional.

Section 118A of the Act provides punishment for making, expressing, publishing or disseminating any matter which is threatening, abusive, humiliating or defamatory.

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Terming it as a draconian law, Surendran argued that the amendment curtails the freedom of speech and expression conferred under the Constitution of India. The petition stated that the words used in section 118 A are not properly defined. The words are possible to be interpreted in different ways and are of general nature. The injury to the mind is not defined. Even the word ‘mind’ is an abstract concept which is difficult to be defined.

Any law which intends to instil fear in the minds of the citizens, even in its vagueness and the possibility of being misused has to be considered as violating the Constitutional rights. Section 118 A of the Police Act 2011 is in violation of the basic structure of the Constitution of India. Kerala is preparing for the elections to the Local Self Governing Institutions. In a democratic setup, elections are fought on policies, manifestoes and performance.

In the light of section 118A, it may not be even possible to criticize the past performance of a representative for fear of prosecution. In the election process, it is necessary to discuss the pros and cons of the candidates in the field.  But with the new provision, even that right would be curtailed for fear of prosecution.

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In their petition, RSP leaders submitted that 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' case by the Supreme Court. The SC had struck down Section 66-A (Punishment for sending offensive messages through communication service) as violative of Article 19 (1) (a) and not being saved under Article 19 (2). In Shreya Singhal case, the SC had held that the expressions used in Section 66-A were unconstitutionally vague and without a clear demarcating line as to what constituted an offence and what did not.

In the new amendment, expressions such as 'humiliating', 'threatening' and 'abusing' are not defined. Leaving such expressions to the subjective interpretation of individuals means that even diligent and conscientious citizens cannot know with certainty as to whether their acts of expressions could run afoul of Section 118A. The objects of introducing Section 118A could have been achieved through existing legal provisions which are less restrictive of the right to free speech and expression, stated the petitioners.


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