On Monday when the Left government in Kerala put a hold on the controversial amendment made to the Kerala Police Act following widespread criticism, leaders of opposition parties in the state moved the High Court asking to strike down the same. BJP Kerala state president K Surendran and RSP leader Shibu Baby John on Monday filed separate pleas in the Kerala High Court, challenging the constitutional validity of Section 118A.
In his plea, Surendran sought to declare the newly inserted Section 118A in the Kerala Police Act, 2011, as unconstitutional, void and inoperative. The BJP leader submitted that the new provisions in the Act "curtail 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”, the plea said.
In their Public Interest Litigations, RSP leaders Shibu Baby John, N K Premachandran and AA 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.
Meanwhile, the CPI(M)-led Left Front government on Monday decided to put the new law in abeyance as the law triggered a political storm, with many describing the measure as an assault on freedom of expression and media.