‘Section 118A will not stand court scrutiny’

However, the new amendment to the Kerala Police Act which has become law, alters the scenario altogether.
For representational purposes (Express Illustrations)
For representational purposes (Express Illustrations)

KOCHI: The controversial section included in the Kerala Police Act, which gives sweeping powers to the police to clamp down on ‘defamatory’ or ‘offensive’ posts, will not stand the scrutiny of court, said legal experts.

In March 2015, the Supreme Court, in a landmark verdict, had struck down Section 66A of the IT Act and Section 118 (d) of the Kerala Police Act after it found the sections violative of the right to free speech, and a similar fate would befall on the Section 118A of the Kerala Police (Amendment) Ordinance too if challenged in the court, they said.

“The SC said Section 66A of the Information Technology Act, as well as the 118(d) of the Police Act, go overboard, which means you can extend or expand it like an elastic by including anything in the purview of the definition. That’s why the provision was struck down by the SC,” said eminent lawyer Kaleeswaram Raj. 

The case in which Section 66A was struck down followed the arrest of the two girls hailing from Palghar, about 100km from Mumbai, in November 2012 for an innocuous post criticising the bandh called in the wake of the death of Shiv Sena supremo Bal Thackeray. They were arrested under Section 66A of the IT Act. The two were released on bail the same day and the government suspended two policemen following a public outcry.

Later, a PIL was filed by a law student, Shreya Singhal, and others challenging the constitutional validity of Section 66A of the IT Act, which the Supreme Court made invalid in the landmark order of March 24, 2015.

“Now, by virtue of 118A included in this ordinance, Kerala has practically revived the same kind of position, which was struck down by the Supreme Court. Therefore, this will not stand the scrutiny of the constitutional court, be it the High Court or the Supreme Court. For whatever reason the Shreya Singhal case verdict annulled the provision, for the same reason, the present law is untenable,” said Kaleeswaram Raj.

Dark Age effect

Mathews J Nedumpara, a Supreme Court lawyer, said the restrictions contained in the CrPC offer enough protection to the press in reporting without fear of prosecution. However, the new amendment to the Kerala Police Act which has become law, alters the scenario altogether. 

“It has the effect of taking us back to the Dark Ages where free speech is punished as heresy, because what comes under its purview, shockingly includes social media and private messaging apps,” he said.

He said if the amendment is enforced, policemen would be free to pick up anyone, even in the dead of the night, for criticism the person made on social media, as the offence has been made cognizable.

“It would bring a new era of Police raj,” Nedumpara said. Kaleeswaram Raj said in the case of Section 66A, the Supreme Court said it went overboard and the Section covered the word ‘annoyance’.

"A genuine criticism may cause annoyance to the government or the people at the helm of affairs. So, if the mere annoyance is treated as an offence then there is no free speech. That is why the Supreme Court struck down 66A and 118(d). Any penal provision that has a chilling effect can lead to a kind of self-censorship."

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