Kerala HC orders no FIR on Section 118A of Kerala Police Act until review; state to give opinion by Wednesday

The Kerala High Court on Tuesday stated in an interim order that no adverse action, suo motu case or FIR would be registered invoking the ordinance which added Section 118-A recently to the Kerala Police Act, 2011,until the state government took a decision on it.

The Kerala government had introduced Section 118A in the Kerala Police Act via an ordinance on Sunday, November 22, to criminalise anyone who expresses, publishes or disseminates information, which is threatening, abusive, humiliating or defamatory.

In the face of severe criticism, Kerala Chief Minister Pinarayi Vijayan said the new section 118A of the Kerala Police Act would be kept in abeyance. It has, however, not been withdrawn. Until another ordinance is signed to withdraw this, it remains as a law.

A Bench of Chief Justice S Manikumar and Justice Shaji P Chaly took up petitions challenging the ordinance. A counsel appearing for the petitioner contended that it was not enough that the ordinance was put in abeyance, and that according to Article 213 of the Constitution, the author of the ordinance would have to withdraw it. Until then, the ordinance would remain in effect, it was pointed out.

Additional Advocate General Ravindranath KK informed the court that the government was reconsidering the matter. He sought time until day after tomorrow to file an official communication on the issue. The bench asked the AAG if it could record the submission that there would be no coercive action on the basis of Section 118A till the government directive in the matter. The High Court then directed that no adverse action would be taken invoking Section 118A, Kerala Police Act, until the government reached a decision.

The new ordinance states that “Anyone publishing or disseminating information, which is threatening, abusive, humiliating or defamatory message through any means of communication, is liable to face imprisonment of five years or fine of Rs 10,000 or both”. The Kerala government said the amendment was to prevent cyber-attacks against women and children.

This law enables the police to take action against such posts. In 2015, the Supreme Court had repealed a similar law, Section 118(d) of the Kerala Police Act, along with Section 66A of the IT Act. The petitioner in this case, Anoop Kumaran, has filed a petition in the Kerala High Court along with Software Freedom Law Center (SFLC) questioning the new Section 118A. He said that the new amendment was worse than the repealed law.