Kerala Police Ordinance 2020 : A Valid Concern or a Political Move?
The Indian Law Institute, New Delhi
[The author sincerely acknowledges the significant inputs of Adv Prashant Padmanabhan.]
I. INTRODUCTION
The Government of Kerala has issued an ordinance on Nov. 21, 2020 to tackle the problem of "threatening, abusive, humiliating or defamatory" messages. This is in response to the problem of fake or misleading or extreme content in the social media and online news portals though it is applicable to offline mode of communication also. The Kerala Govt says that the purpose is to protect women from such inappropriate and menacing content.
II. ORDINANCE 2020
The Kerala Police (Amendment) Ordinance, 2020 as issued by the Governor is as under:
“118 A. Punishment for making, expressing, publishing or disseminating any matter which is threatening, abusive, humiliating or defamatory.─
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.”
IV. FREE SPEECH CONCERNS
A group of free speech defenders will jump to criticise the enactment though the intensity will be low because the ordinance is coming from Kerala Govt led by left wing which is considered to be less conservative. Liberals, especially those who rely on USA model of free speech will make superficially attractive arguments. Many of them do not know that India has rejected USA model which is a "rights" based model. India has accepted "rights with restriction" model, which permits penalising those free speech which are in appropriate or irritating in nature and has tendency to create violence or disorder. (Pl see, Anurag Deep, "Criminalisation of Membership of Terrorist Organisations in India" in the book Judicial Review, Cambridge University Press, 2020). The templet of arguments against this law can be like, this word is not defined, that word is very wide, police will misuse it etc. These templates are significant and have merits but many enthusiastic scholars do not consider practical difficulties. It will be too early to state whether the law is constitutionally permissible or not because it needs a detailed study of all material before the Kerala Govt. Kerala Govt will have to answer --
(a) Why is the Ordinance 2020 passed when there are many provisions of IPC, IT Act, 2000, POCSO, 2012, SCST Act. The cyber crimes against women can be addressed under section 354A, 354C 354D and IT Act.
(b) Why is this ordinance when section 118 of the Kerala Police ACt, 2011 itself is broad enough to address the concern, which is as under-
118. Penalty for causing grave violation of public order or danger.—
Any person who,—
(a) is found in a public place, in an intoxicated manner or rioting condition or incapable of looking after himself; or
(b) knowingly spreads rumours or gives false alarm to mislead the police, fire brigade or any other essential service; or
(c) knowingly and willfully causes damage to an essential service, in order to create general panic among the public; or
(d) causes annoyance to any person in an indecent manner by statements or verbal or comments or telephone calls
or calls of any type or by chasing or sending messages or mails by any means; or
(e) knowingly does any act which causes danger to public or failure in public safety; or
(f) transports explosive articles or dangerous substances without being lawfully authorized to do so; or
(g) is found under suspicious circumstances, in a public place, being a goonda or a rowdy in possession of equipments which are intended to be used for any activity in the neighbourhood for facilitating any anti-social activity as defined under the Kerala Anti-Social Activities (Prevention) Act, 2007 (34 of 2007) ; or
(h) violates the provisions of section 73 or imparts physical training in contravention of the said provision; or
(i) gives or sells those who are below eighteen years any intoxicating substance or to children any articles or substances which are harmful for their physical and mental health or procure the same near school premises for that purpose,
shall, on conviction be punishable with imprisonment for a term which may extend to three years or with fine not exceeding ten thousand rupees or with both.
However both these questions are matters of desirability of law which cannot be judicially litigated though the same may be raised in political and civil discourse.
V. IS THE ORDINANCE A POLITICAL MOVE?
Kerala is infamous for political violence and murders. Congress vs Left, Left vs RSS has led to 100s of murders. Rahul Gandhi is an MP from Kerala, and congress is trying to regain its political constituency. The BJP has also found significant space in Kerala. Alleged love jehad issue has found discussions in Kerala assembly and in the Supreme Court of India [Shafin Jahan v. Asokan K.M. case (Hadiya case) 2018]. The enforcement of Sabarimala judgement [Indian Young Lawyers Association v. The State of Kerala (Sabarimala)] on the entry of all women in Sabarimala temple has also attracted criticism from conservative quarters. Traditional Hindu voters are inching towards BJP in Kerala. They are becoming more vocal in all platforms including social media in Kerala. Kerala has been one of the worst hit in Covid19 cases. The opposition is encashing these shortcomings of the kerala govt. The recent results of Bihar elections and by elections have made NDA especially BJP more powerful. The supporters of right wing have learnt the trick of selective processing of ideas and ideology from left and now using the same trick against them or other opponents. Kerala elections are scheduled for May 2021. The track record of a communist ideology to tolerate dissent is poor and they believe in crushing the opponents by all means possible "without mercy". Is this law passed to suppress the voice of dissent or is it the true reflection of addressing problem of social media which has gone beyond control? Is this ordinance, 2020 (section 118A, Kerala Police Act) presented to fill the void created by Shreya Singhal judgement or it another political instrument to grant more penal power to the Police? Will innocent people, young social media users, uncomfortable voices, media persons, political opponents be arrested and persecuted? Fortunately there are some good news and relief for now.
VI. PERSONAL LIBERTY CONCERNS
The first concern with a penal law is FIR and the second concern is arrest. Indeed an FIR can be tolerated to some extent but an arrest deprives a person from his personal liberty which may violate article 21, art 19 and 14. The police is infamous to play on the tunes of HMV(his master's voice) in all political regime. The intensity of abuse may increase or decrease. The concern of a citizen depends on whether there is any initial check on registration of FIR and arrest or not. Unfortunately there is no such check.
Section 125 (3) of the Kerala Police Act, 2011 throws light which is as under --
125.Cognizable offences and bailable offences.
(1) Offences under sections 116,117,118, [118A] and 119 of this Act shall be cognizable and bailable and an offence under section 115 shall be cognizable and non-bailable.
(2) Notwithstanding the provisions of sub-section (1), a police officer shall have power to arrest a person only if,—
(a) his arrest is necessary to prevent or not to continue any offence; or
(b) it is manifestly evident that locating such person subsequently is not possible; or
(c) such person is likely to hurt himself or any other person; or
(d) there is any special and emergent circumstances warranting the arrest.
(3) All other offences under this Act shall be non-cognizable and bailable: Provided that a police officer present at the spot may remove a person temporarily for the purpose of preventing the continuance of an offence in his presence.
Through section 4 of the 2020 ordinance, section 125 of the Kerala Police Act, 2011 has also been amended and the new law ie section 118A has been incorporated. Section 118A is cognizable and bailable. In other words
(i) Once an information under section 118A is received, FIR has to be registered under section 154 of CrPC. As the offence is declared cognizable, it is obligatory on the Police to register FIR (as per the constitution bench direction of Lalita Kumari v. Government of UP, Nov 12, 2013).
(ii) As the offence is cognizable under section 118A, a police officer can arrest the suspect without any restriction or permission of a magistrate.
However, there are two reliefs-
(i) As the minimum punishment under newly inducted section 118A is fine and maximum is 3 years of imprisonment, the Arensh Kumar guidelines (July 2, 2014) by the Supreme Court is binding which suggests to arrest only if it is essential. (which is indeed the spirit of the law of arrest). The Police can easily skip this part because the Arnesh Kumar guidelines are not being enforced properly.
(ii) The offence under section 118A is bailable. This is a big relief. The Police will be duty bound to release the accused on bail from the police station itself and the accused can seek bail as a matter of right without going to the court.
Section 118A contains mens rea element of knowledge (second degree of mens rea). Many Supreme Court judgements also mandate that in free speech cases the tendency of violence or disorder is an additional element. Kedarnath Singh case (1962) which is on section 124A of IPC (sedition) can be one example. But the Police ordinance incorporates a law which punishes expression against person or group of persons. In such cases the requirement of Kedarnath Singh seems persuasive only. In Defamation judgement (Subramanian Swamy v. Union of India-2016) section 499 was declared as constitutional though it does not need any element of tendency of violence or disorder.
VII. Reforms
The rigour of section 118A can be checked by making this provision as non cognizable. It will reduce the chances of abuse because of three reasons-
(i) No FIR can be registered if section 118A is non cognizable. Only an NCR can be registered under section 155 of CrPC.
(ii) No investigation can be initiated without the permission of concerned judicial magistrate if section 118A is made non cognizable. [section 155(2)]
(iii) No arrest can be made without warrant if section 118A is made non cognizable. [section 2(l) read with section 41(2) of CrPC]
It is surprising to see that despite having various provisions under IPC, IT Act, POCSO, and the Kerala Police Act, 2011 the new law (section 118A) was not only introduced through ordinance but it was made cognizable. This will grant the Police more power to abuse its authority to register motivated FIR, make arbitrary arrest. It will bring more corrupt practices also.
Another way to check the abuse of the Police power is to make the use of section 107, 108 of CrPC as a condition precedent.
The ordinance is as under--
Kerala Police (Amendment) Ordinance, 2020 [issued Nov 2020]
GOVERNMENT OF KERALA OF KERALA Law (Legislation-E)
Department NOTIFICATION No. 15312/Leg.E1/2020/Law.
Dated, Thiruvananthapuram, 21st November, 2020
6th Vrischikam, 1196 30th Karthika, 1942.
In pursuance of clause (3) of Article 348 of the Constitution of India, the Governor of Kerala is pleased to authorise the publication in the Gazette of the following translation in English language of the Kerala Police (Amendment) Ordinance, 2020 (79 of 2020).
By order of the Governor, ARAVINTHA BABU P. K., Law Secretary.
ORDINANCE NO. 79 OF 2020 THE KERALA POLICE (AMENDMENT) ORDINANCE, 2020
Promulgated by the Governor of Kerala in the Seventy-first Year of the Republic of India.
AN ORDINANCE further to amend the Kerala Police Act, 2011.
Preamble.—WHEREAS, it is expedient further to amend the Kerala Police Act, 2011 (8 of 2011) for the purposes hereinafter appearing;
AND WHEREAS,
the Legislative Assembly of the State of Kerala is not in session and the Governor of Kerala is satisfied that circumstances exist which render it necessary for him to take immediate action; NOW, THEREFORE, in exercise of the powers conferred by clause (1) of Article 213 of the Constitution of India, the Governor of Kerala is pleased to promulgate the following Ordinance:—
1. Short title and commencement.—
(1) This Ordinance may be called the Kerala Police (Amendment) Ordinance, 2020.
(2) It shall come into force at once. 2. Act 8 of 2011 to be temporarily amended.—During the period of operation of this Ordinance, the Kerala Police Act, 2011 (8 of 2011) (hereinafter referred to as the principal Act) shall have effect subject to the amendments specified in sections 3 and 4.
3. Amendment of section 118.—
In the principal Act, after section 118, the following section shall be inserted, namely:— “118 A. Punishment for making, expressing, publishing or disseminating any matter which is threatening, abusive, humiliating or defamatory.─
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.”.
4. Amendment of section 125.—In sub-section (1) of section 125 of the principal Act, after the figures and symbol “118,” the figures, letter and symbol “118A,” shall be inserted.
ARIF MOHAMMED KHAN, GOVERNOR.
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