Kerala’s former Law Secretary raises concerns about constitutionality of Kerala Police Act

Section 118A of the Kerala Police Act is neither necessary nor conducive to the best democratic traditions of the State, said B G Harindranath, former Law Secretary of Kerala Government.

Law experts, rights activists, and opposition leaders criticised the Kerala government for signing the Kerala Police Act Amendment ordinance, envisaged by the Left government in the state, saying it was a move aimed at muzzling media and free speech.

“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,” Harindranath who is also former Professor at National Judicial Academy and retired District and Sessions Judge wrote in Live Law,  a legal news portal.

 According to the latest ordinance, a police officer can suo motu register a case against the accused and arrest him.

Section 118A reads: 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.

Harindranath said that the pressing need at this point of time to promulgate an ordinance of this nature is unclear.

“By inserting Section 118A in sub-section (1) of section 125 of the principal Act, the Kerala Police have been empowered to take cognizance of the offence of defamation and similar offences which hitherto were non-cognizable. The distinction is that in a cognizable offence the police get authority to arrest anyone who according to the subjective satisfaction of the police officer has committed an offence envisaged in the newly inserted 118A. This is an unusual power given the fact that offence of defamation and similar offences in the Penal Code hitherto were non-cognizable,” he wrote.

Former Law Secretary of Kerala Government also noted that the Section 118A creates an offence which is vague and over broad, and, consequently, unconstitutional under Article 19(1) and not saved by Article 19(2).

Article 19(1) of the Constitution of India guarantees to all its citizens the right to freedom of speech and expression while Article 19(2) of the Constitution authorises the government to impose, by law, reasonable restrictions upon the freedom of speech and expression “in the interests of… public order.”