After a furore, Kerala government decides not to go ahead with implementing the amendment to the Kerala Police Act which stipulates imprisonment or a fine for defamatory content in the media

Published : November 23, 2020 19:00 IST

Kerala Chief Minister Pinarayi Vijayan. Photo: PTI

In the wake of widespread criticism from even pro-Left quarters, the Left Democratic Front (LDF) government in Kerala has decided not to go ahead with the controversial amendment to the Kerala Police Act of 2011, which was promulgated as an ordinance by the Governor on November 21.

The ordinance, which was based on a Cabinet recommendation made to the Governor last month, stipulates either imprisonment for up to three years or a fine of up to Rs.10,000 or both “to those who produce, publish or disseminate content through any means of communication with an intention to intimidate, insult or defame any person”.

Chief Minister Pinarayi Vijayan, after attending the Communist Party of India (Marxist) State secretariat meeting held earlier today, said in a statement: “The amendment evoked varied responses from several corners. Apprehensions were aired by those who support the LDF and profess to defend democracy. In these circumstances, the Government of Kerala will not go ahead with implementing the amendment. A detailed discussion will be held in the Assembly regarding this, and the future course of action will be decided upon after duly considering the opinions coming up from all quarters.”

Earlier, Sitaram Yechury, general secretary, CPI(M), said categorically in New Delhi: “Regarding the Police Act, that ordinance is being reconsidered. You will shortly hear what this means. It is clearly being reconsidered. We have taken into account the widespread apprehensions, the criticisms that have been raised. And the CPI(M)’s position has already been articulated in the Polit Bureau statement as well as the statutory motion that we moved in Parliament. Those are already there. And, so this ordinance is being reconsidered.”

Section 118A, which was inserted through the ordinance in the Kerala Police Act, 2011, said: “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 amendment led to widespread outrage and criticism not just from the opposition but also from pro-Left organisations and individuals who expressed concern over its “draconian implications”, and described it as “a brazen attack on freedom of speech and the media”, which would give an opportunity for “over-zealous law enforcers down the line” to misuse it. In their view, the amendment was “quite similar to Section 66A of the Information Technology Act, 2000, which was struck down by the Supreme Court” (in the Shreya Singhal case 2015) on the grounds that “its stated objectives could well be achieved by existing laws.”

Meanwhile, N.K. Premachandran, MP and former Minister, Shibu Baby John and A.A. Azeed, RSP leaders, and K. Surendran, the Bharatiya Janata Party’s (BJP’s) State president have filed petitions challenging the proposed amendment as ultra vires the Constitution before the Kerala High Court. They claimed that the introduction of Section 118A was an attempt to “resurrect the same approach to regulation of free speech that had been declared to be unconstitutional by the Hon’ble Supreme Court in Shreya Singhal”, and “to circumvent the Shreya Singhal judgment, whereby the Supreme Court had held that Section 118(d) of Kerala Police Act (a similar provision) violated right to free speech under Article 19(1)(a) of the Constitution of India”.

The State government had earlier said that the existing laws were found to be insufficient to deal with crimes such as “widespread malicious campaigns through social media and otherwise, which pose a threat to individual freedom and dignity, which are constitutionally ensured to citizens”, especially after the Supreme Court struck down Section 66A of the Information Technology Act and Section 118(D) of Kerala Police Act”.

The Chief Minister said in today’s statement that “criticisms and complaints against defamatory, untrue and obscene campaigns have come up from various quarters of the society. Strong protests have emerged from the society on account of the merciless attacks on various sections including women and transgenders. There have been instances in which even the integrity of families has been affected, resulting in suicides. The need for legally tackling this was raised even by the heads of media houses. It was in these circumstances that an amendment to the Kerala Police Act was envisaged.”

Ramesh Chennithala, Leader of Opposition in the Assembly, however, said that the Chief Minister was trying to hoodwink the critics of the amendment. “Once an ordinance is signed by the Governor it becomes law and nobody can claim that it will not be implemented. The government should instead withdraw the ordinance which violates human rights and the fundamental rights guaranteed by the Constitution. It is a challenge against the people that the government refuses to withdraw the ordinance even after the CPI(M)’s national leadership, legal experts like Prasant Bhushan, the media world and the general public had declared it as undemocratic. The amendment, which militates against the spirit of various judgements of the Supreme Court, has no legal validity,” he said.