On 21st October 2020, the Government of Kerala in a press release indicated an amendment to the Kerala Police Act, 2011. The amendment aimed at inserting Section 118A, similar to Section 66A of the Information Technology Act, 2000 and Section 118 (d) of the Kerala Police Act which were struck down in Shreya Singhal V. Union of India by the Supreme Court of India.
SFLC.in had sent a letter dated 24th October 2020 to the Chief Minister of Kerala in reference to the said amendment.
The letter stated the said amendment if passed can cause law enforcement agencies to curb dissent and to clamp down on legitimate criticism of authorities and individuals.
The amendment was promulgated through Ordinance no. 79 of 2020 amidst criticism from Civil society and activists on 21st November 2020. The ordinance stated that an amendment will be made to The Kerala Police Act, 2011 by insertion of Section 118-A reproduced below –
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 section aims to punish the offenders with a fine of 10,000rs or with imprisonment upto 3 years for publishing any content that is threatening, abusive, humiliating, or defamatory.
Activist Anoop Kumaran who had earlier challenged Section 118(d) of the Kerala Police Act, 2011 filed a petition in the High Court of Kerala with SFLC.in’s assistance. The petition was listed today along with a batch of other petitions. The petition challenges the amendment on various grounds such as the similarity with stuck down sections 66A of the IT Act, 2000 as well as Section 118 (d) of the Kerala Police Act, 2011. The petition also stated that the amendment is vague in nature and is in conflict with central legislation. The amendment also violates the Fundamental Right to Free speech and expression as enshrined in the Constitution of India. A copy of the petition is attached for reference.
The government of Kerala in the meanwhile had given out a statement yesterday that the government is reconsidering the amendment amidst heavy criticism.
The petitioner was represented by SFLC.in before a bench comprising of Chief Justice Mr. S. Manikumar and Justice Shaji P. Chali. The Court recorded the Government’s submissions which stated that no coercive action will be taken under the new amendment, while a decision is taken by the Government in the matter. The court has instructed that no FIR’s can be registered or suo moto cognizance be taken under the new amendment until further orders. The order is attached for reference.
The matter was listed on 25th of November 2020 where the Government submitted that they will be withdrawing the ordinance.
On the same day that is 25th November 2020, the Governor for Kerala signed an ordinance to withdraw the ordinance which amended the Kerala Police Act by inserting Section 118A.