The State government on Tuesday assured a Division Bench of the Kerala High Court the police will not take any adverse action or register any FIR, or take suo moto cognizance of the newly incorporated Section 118A of the Kerala Police till the government takes a final call on the controversial section.
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The controversial section 118A makes publishing, expressing or making or dissemination of humiliating, abusing, threatening, and defaming contents through any mode of communication a bailable offence and provides for a punishment of three years.
The undertaking was given by the State government before a Bench led by Chief Justice S. Manikumar when a bunch of writ petitions including the ones by BJP President K. Surendran , RSP leaders Shibu Baby John and N. K. Premachandran and others challenging the constitutional validity of section 118A came up for hearing.
When the petitions were taken up for hearing, Additional Advocate General K.K. Raveendranath submitted that the State government was reconsidering the Ordinance which inserted the new section in the police act. He undertook that till the government took a final decision on the issue, "no adverse action , or registration of FIR on receipt of any complaint or suo motu cognizance will be taken by the police".
When the Additional Advocate General made the submission that the government was reconsidering the provision, the Bench orally pointed out that the police could still register FIRs based on the new section as the Ordinance had already come into force. The AAG then submitted that there would not be any coercive action on the basis of Section 118A till the government reconsidered the issue.
The court recorded the submissions of the AAG and adjourned the petitions for further hearing on November 25. According to the petitioners, the new section was unconstitutional. In fact, the Supreme Court in the Shreya Singhal case had struck down a similar provision(118-D) of the Kerala Police Act along with section 66A(Punishment for sending offensive messages through communication services) of IT Act as violative Article 19 (1) (a). The new section went against the Supreme Court ruling in the Shreya Singhal case.
Besides, it suffered from the vagueness, against which the Supreme Court had specifically cautioned. It would have a chilling effect on the exercise of the fundamental right to free speech and expression. Thus, the new provision violated the basic structure of the Constitution.
