kerala government has given assurance to withdraw kerala police ammendment ordinance, ordinance making powers of executive

 

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Kerala govt. has given assurance to put on hold Kerala police amendment [ordinance] for violating ARTICLE 19[1][A] of the constitution, provisions of criminal procedure code and IT ACT 2000. Whether the ordinance by president or governor of the state could be held void or not? let's check it..

Recently in Kerala, an ordinance has been issued by the governor which is related to amendment in Kerala police act. Introducing section 118A. Which has been challenged by law scholars, law students and BJP leaders of Kerala as well in Kerala high court for violating the fundamental right of speech and expression which grants right to freely express his conscience subjected to article 19[2]. Newly introduced section confers powers upon the police to arrest without warrant and to take cognizance [investigation].

New section 118A ----
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.

Reason for being in question---

1. Speech and expression – as we know in recent numbers of cases arose where dimensions of digitally speech and expression come under question. Recently twittering against the honourable supreme court is the best example. This introduced section triggered by the political flavours of Kerala government. Challenged by numbers of PIL in Kerala high court as violating the fundamental right of speech and expression. Still interpretation of digital speech and expression needed.

2. Section 66A of IT ACT---SECTION 66A of it act already struck down by the supreme court in shreya singhal v/s union of India case as the violative of article 19 and right against illegal arrest. New introduced section 118A similar to struck down a section of 66A of IT ACT. “the mere causing of annoyance, inconvenience, danger etc., or being grossly offensive or having a menacing character are not offences under the Penal Code at all.” [para. 44] OF THE JUDGEMENT of shreya singhal case. Punishment by jail for the vague interpretation of the word ‘annoyance’ as against personal liberty also not illustrated or penalized by any substantive or penal law.

3. Cognizable offence---conferring power upon police officials to take cognizance[investigation] including arrest without warrant for the vague un-interpret terms of the section surely leads to miscarriage of justice and arbitrariness. In the light where the scope of speech and expression from the digital platforms surely not determined could lead to legal tussle in future.

Ordinance making power--
the Governor of a state can issue Ordinances under Article 213, when the state legislative assembly (or either of the two Houses in states with bicameral legislatures) is not in session or legislative assembly not in session. The powers of the President relating to the ordinance envisage under article 123. the Governor are broadly comparable with respect to Ordinance making. However, an ordinance making power of both governor and president subjected to rule of separation as per the schedule 7 of the constitution related to central, state and concurrent list. Governor can issue ordinance only on the subjects matters of state list and related matters of concurrent list. Same as president can only issue ordinance related to central list and matters related to the concurrent list. the Governor must be satisfied with the circumstances that make it necessary for him to take immediate action
All Ordinances promulgated by the Governor in the State have the same effect and force as an Act of Legislature of the State. The Ordinance must be laid before the State Legislature when it reassembles and it must be upheld by the State legislature, failure to which the Ordinance would be invalid.

In upender lal v/s narayan devi AIR1968 MP 90. Supreme court held that the court cannot question the validity of the ordinance on the ground that ‘there was not sufficient need for immediate action’.

In RC Cooper vs. Union of India (1970) the Supreme Court, while examining the constitutionality of the Banking Companies (Acquisition of Undertakings) Ordinance, 1969 which sought to nationalise 14 of India’s largest commercial banks, held that the President’s decision could be challenged on the grounds that ‘immediate action’ was not required; and the Ordinance had been passed primarily to by-pass debate and discussion in the legislature.

In AK Roy vs. Union of India (1982) while examining the constitutionality of the National Security Ordinance, 1980, which sought to provide for preventive detention in certain cases, the Court held that the President’s Ordinance making power is not beyond the scope of judicial review.

In DC Wadhwa v/s state of Bihar 1987, 1 SCC 378. The topmost federal court held that misusing the power of ordinance making under article 213 by issuing ordinances and not promulgating into the act is the encroachment to the intention of constitution framers. In this case, petitioner was the professor challenged the abusive scenario of executive powers. He mentioned in the petition that between 1967-1981, there were 256 ordinances issued. In which none of them succeeded into the act. Supreme court observed the serving of political aim.

......This sought that executive orders are subjected to judicial review and under the scope of article 13.

Put a hold on ordinance---
Putting a hold on ordinance means to not reapproving the ordinance in legislature and parliament after the expiration of 6 months of issuing ordinance and before the 6 weeks of reassembling the legislature or parliament. Acc. To article 213[2][b] governor may withdraw ordinance anytime.

law in routine fb page link 

Conclusion---
Any ordinance violates the ambit of part 3 of the constitution shall be void and subject to judicial review as well. Issuing ordinances just to serving political aim harms the sole intention of the constitution. The need of an hour is that Interpretation of speech and expression over digital platforms is much needed.