Kerala High Court
Kerala High Court
File Photo

The Kerala High Court on Tuesday posted for hearing tomorrow the petitions challenging Section 118A of Kerala Police Act as it recorded submissions made by the state government.

Petions against an ordinance amending the Kerala Police Act were filed separately by BJP Kerala state unit chief K Surendran and RSP leader Shibu Baby John on Monday. The pleas challenged the constitutional validity of an amendment to the Police Act brought by the state's ruling CPI(M)-led LDF government.

The court recorded the submission made by the Advocate General that there will be no adverse action, registration of FIR or suo-moto cognizance.

The Pinarayi Vijayan in Kerala on Monday put on hold implementation of the controversial amendment to the state Police Act after facing flak over the law that may allow jailing of citizens over "offensive" or "defamatory" social media posts.

The CPI(M)-led Left Democratic government cited criticism from various quarters, saying that a detailed discussion will be held in the state assembly before the next step.

Chief Minister Pinarayi Vijayan said his government was not intending to implement the amendment act now as even those who supported the LDF and those who stood for protection of democracy expressed concern about it.

"We are not intending to implement the amended Kerala Police Act. A detailed discussion will be held in the state assembly in this regard and further steps will be taken after hearing views from various quarters," he said in a statement.

In his plea, Surendran sought to declare the newly inserted Section 118A in the Kerala Police Act, 2011, as unconstitutional, void and inoperative and strike down the same.

The BJP leader submitted that the new provisions in the Act "curtails the freedom of speech and expression conferred under the Constitution of India".

Noting that even a positive criticism or opinion of expression could be interpreted to be an offence under the provision, he alleged that "this is against the basic principle of the criminal justice system."

"The provision intends to invoke fear in the minds of the citizen and thereby to prevent the circulation of opinions, ideas etc, which are the basic foundations of a democratic society", it said.

In their Public Interest Litigations, RSP leaders Shibu Baby John, N K Premachandran and A A Azeez sought to declare Section 118A as unconstitutional since it is "violative of Articles 14, 19 (1) (a) and 21 of the Constitution of India."

They submitted that Section 118A suffers from inherent and incurable vagueness.

Noting that expressions like "humiliating", "threatening" and "abusing" are not defined, they submitted that leaving such expressions to the subjective interpretation of individuals meant that even diligent and conscientious citizens cannot know with certainty whether their acts of expressions could run afoul of Section 118A.

This also results in a significant chilling effect on the exercise of the fundamental right to free speech and expression, they said in their pleas.

"Offences under Section 118A have been made cognizable. Therefore, the subjective personal views and unguided interpretation by individual police officials, who are not trained for exercising judicial functions, as to whether a particular act constitutes an offence under Section 118A or not would decide whether serious consequences such as arrest follow. The same is arbitrary and violative of Article 14", the plea said.

(With PTI inputs)

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