Section 118A of the Kerala Police Act – An attack on Freedom of Speech

Must Read

India’s International ‘Retrospective Taxation’ Regime Vis-a-Vis PCA Rulings in Vodafone and Cairn in 2020

The imposition of retrospective taxation of foreign companies doing business in India has been at the helm of controversy...

What is the Real Estate (Regulation and Development) Act, 2016?

The Real Estate (Regulation and Development) Act, 2016 (“RERA”) is an Act of the Parliament. It seeks to protect...

Should the Exorbitant Amounts Charged for RT-PCR Tests be Refunded?

Introduction A plea has been filed in the Honourable Supreme Court of India seeking a refund of exorbitant amounts charged...

Should CCTV’s be Installed in the Police Station?

Introduction In a recent judgment, the bench led by Justice Nariman issued directions to both the state and Union Territory...

A Legal Analysis of the West Bengal Political Crisis on IPS Deputation

The Ministry of Home Affairs (MHA) has recently summoned three IPS officers of West Bengal (WB). The decision was...

Explained: Postal Ballot for NRIs

At the end of November 2020, Election Commission sent a proposal to the law ministry to amend the Representation...

Follow us

 

Freedom to free speech and expression is a fundamental right guaranteed under Article 19 of the Indian Constitution. It is the most precious and natural right and thus is considered as the backbone of Part III of the Constitution, but this right is not absolute and comes with certain limits which are called ‘reasonable restrictions’.

Recently, there has been an amendment brought in the Kerala Police Act, 2011 which inserted Section 118A, is in the news and is being criticized by the people as well as the opposition as being violative of Article 19.

What is Section 118A?

The newly inserted Section 118A of the Kerala Police Act, 2011 states that anyone who creates or sends offensive messages to offend or threaten another person via any means of communication will be punished with a fine of Rs. 10,000/- along with imprisonment for five years.

Also, the police can slap criminal charges by interpreting any kind of communication through any medium as defamatory. Even ‘injury to the mind’ can be a sufficient reason for the police to slap criminal charges against the other person which may stipulate punishment for a term which may extend to three years and a fine which may extend to Rs 10,000/-. The police officials can also take a suo moto action even if the complaint is not filed by the alleged victim.

How is it Violative of Article 19?

The Section was introduced with whole and sole aim which was to prevent cyber-bullying whose victims were mostly women and children and was thus signed by the Governor of Kerala Mr. Arif Muhammad Khan But the amendment which inserted this section has received widespread opposition from the people of Kerala as well as the opposition parties.

The Section 118A introduced will provide more power to the police and also will curtail the freedom of the press since the law has been stretched to such a vast extent that every communication or publication made would be subject to interpretation by the police and the power to determine whether such communication or publication caused injury to the mind of a particular person has also been left upon the wisdom of the police officials.

Also, the section 118A introduced is vaguely worded, and similarities have been drawn upon it with Section 66A of the Information Technology Act, 2000 which was struck down by the Supreme Court in the case of Shreya Singhal v. Union of India[AIR 2015 SC 1523]. The petitioners, in the case of Shibu baby John and Ors. v. State of Kerala [WP (c) No. 25793/2020] contended this in Kerala High Court. Thus, through this case, the Kerala Government, for the time being, has withdrawn the newly introduced section and has told the Kerala High Court that the ordinance will not be implemented and is subject to detailed discussion in the Kerala legislative assembly.

Analysis of Article 19- Right to Freedom

The Right to Freedom is a Fundamental Right that is enshrined under Article 19 of the Indian Constitution and provides for several freedoms that are only available to citizens of India and are as follows:

  1. Freedom of Speech and Expression
  2. Freedom of Assembly
  3. Freedom to form associations or unions or cooperative societies
  4. Freedom of Movement
  5. Freedom to reside and settle
  6. Freedom to profession, trade, business, occupation.

All these freedoms are mentioned under Article 19 (1). The freedoms, earlier, also comprised of Freedom to acquire, hold or dispose of property which was deleted by the 44th Amendment Act, 1976 and also the term ‘Cooperative Societies’ was added by the 97th Amendment Act, 2011 but as discussed above, this right is not absolute and is subject to reasonable restrictions which have been enshrined in the Article 19 (2) to 19 (6).

Talking about the Freedom of Speech and Expression, they are stated under Article 19 (1) (a) and consists of 3 rights:

  1. Right to receive information
  2. Right to express their idea
  3. Right to keep any information or communication a secret.

Now, a question comes to mind as to what does the term “Speech and Expression” means? To answer this, the term Speech and Expression includes:

  1. Words of Mouth
  2. Writing
  3. Printing
  4. Pictures, films, movies, etc.

Along with the rights and freedoms mentioned, Article 19 (1) (a) also includes the right to remain silent and the freedom of the press. The term “expression” includes publication, and if something is published then it can be communicated via circulation, and without circulation, the publication has no value and thus freedom of speech and expression includes the freedom of the press.

The right to remain silent was incorporated in Article 19 (1) (a) by the case of Bijoe Emmanuel v. State of Kerala [1986 3 SCC 615] where the court laid down that no person can be forced to sing the national anthem if he or she has a genuine objection based on religious faith. It was held that the expulsion of children for not singing the national anthem was not in violation of Article 19 (1) (a) since they did not commit any offense under the Prevention of Insult to National Honour Act, 1971 as they stood respectfully when it was being sung.

Conclusion

In my opinion, the Ordinance brought forward by the Government of Kerala is not needed since as per the judgment of Sreeja Prasad v. State of Kerala case, 2020, there are already several laws enacted to curb the offense of cyberbullying, and instead of bringing such hurried and poorly drafted amendments, the Government of Kerala should focus on making the police more vigilant since the state must maintain public order and maintain public order, the culprits indulging in such offenses of cyberbullying should be booked immediately, and for that, the police have to be more strict and vigilant.


Libertatem.in is now on Telegram. Follow us for regular legal updates and judgment from courts. Follow us on Google News, InstagramLinkedInFacebook & Twitter. You can subscribe to our Weekly Email Updates. You can also contribute stories like this and help us spread awareness for a better society. Submit Your Post Now.

LEAVE A REPLY

Please enter your comment!
Please enter your name here

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Latest News

SC: Under-21 Convicts Can Be Given Less Than Minimum Sentence, Resorts To Probation of Offenders Act

The Supreme Court resorted to the Probation of Offenders Act to sidestep the mandate under Section 397 of the Indian Penal Code that mentions a sentence of not less than 7 years to those convicted of armed robbery, to give a chance to two young convicts to reform their lives.

Environment Protection Act Passed at the Instance of Foreign Powers: NHAI in Karnataka HC

The National Highways Authority of India (NHAI) claimed in a submission that the Environment Protection Act 1986 was passed not only for the protection of the environment by the parliament but also at the instance of foreign powers. This statement was made while referring to a UN conference and got the NHAI into great trouble in the Karnataka High Court.

Delhi High Court To Implement a Hybrid System Through Virtual and Physical Hearing

On Friday the Delhi High Court said that they have initiated steps to implement a mode wherein hearing can be done by virtual as well as physical mode. The Delhi High Court is aiming to implement the Hybrid mode. It stated that when the particular bench is conducting a virtual hearing the lawyer may opt for this mode after giving prior intimation about the same.

Mercy Plea of Rajiv Gandhi Assassination Case To Be Decided in Four Weeks, TN Governor To Supreme Court

Tamil Nadu Governor Banwarilal Purohit on Thursday told the Supreme Court that a decision on the mercy petition of one of the convicts serving a life sentence for the assassination of former Prime Minister Rajiv Gandhi, AG Perarivalan will be taken within four weeks. The petition has been pending with the Governor since December 30, 2015.

Bombay High Court Questions FIR Over Journalist Alleged of Communist Comment on WhatsApp

An FIR lodged against the editor of Marathi newspaper, Rajkumar Chhajed has been questioned by the Bombay High Court. The Maharashtra Police has accused Chhajed of creating a rift between the two communities based on a WhatsApp message.

Allahabad High Court Expresses Dissatisfaction on Counsels Seeking Unnecessary Adjournments

The petition had been filed by Smt. Radha prayed to issue directions to Judicial Magistrate-I in Faizabad. The petition sought a speedy decision in...

[Delhi Riots] When the IT Ministry Calls Us, We Will Go Says Harish Salve To Delhi High Court

The Vice President and Managing Director of Facebook, Ajit Mohan told the Supreme Court that when the representatives of the company are called by the Information Technology Ministry they will come and record their statements.

Allahabad High Court Seeks Response on Compensation of Cutting Trees From National Highways Authority of India (Nhai) 

The Order had come in the form of a Public Interest Litigation (PIL) filed by a bunch of law students in Uttar Pradesh. The...

Doctrine of Proportionality Must Adhere to Reasonableness Principal Test: Madras High Court

Young Men's Christian Association built a commercial complex and leased it without having due permission. The District Collector & Tahsildar issued a show-cause notice...

Delhi High Court Refuses To Stay Release of ‘The White Tiger’ on the OTT Platform Netflix

A plea requesting a stay on the release of the film ‘The White Tiger’ by the American producer, John Hart Jr. alleging copyright violation was rejected by the Delhi High Court on Thursday.

More Articles Like This

- Advertisement -