THIRUVANANTHAPURAM: Governor Arif Mohammed Khan is learnt to be examining the constitutionality of the draft ordinance to amend Kerala Police Act, 2011, that would include provisions giving unbridled powers to police in initiating action against not only cyber bullies but all types of media, including mainstream media.
The proposed amendment has been pending with the governor, sources said. The governor, who was not in the state till Thursday, is learnt to be examining the various options available before him and discussing the matter with constitutional experts. Signing the ordinance or sending it back is not the only option available with the governor in this case, say experts. He can also refer the matter to the Centre.
As per Article 254 (2) of the Constitution, “where a law made by the legislature of a state with respect to one of the matters enumerated in the concurrent list contains any provision repugnant to the provisions of an earlier law made by the Parliament or an existing law with respect to that matter, then, the law so made by the legislature of such state, shall if it has been reserved for the consideration of the President and has received his assent, prevail in the state.”
Since law and order is a concurrent subject, the governor can send the ordinance to the President for consideration. This will invite the scrutiny of the Centre, which is still smarting from certain sections of similar legislation it had enacted being struck down as unconstitutional by the Supreme Court.
The state had encountered a similar situation — dealing with another subject on the concurrent list — when it passed the Malayalam Language (Dissemination and Enrichment) Bill, 2015. The bill made its way to the governor, who then referred it to the President over doubts whether it would contravene the three language formula under the Official Languages Act. The bill is still pending with the Centre.
“It is the governor’s prerogative to send legislation for the consideration of the President under Article 254 (2). The governor is also empowered to seek opinion on the constitutionality of legislation from the state government by returning the ordinance,” former law secretary B G Hareendranath said.
A governor could also hold on to an ordinance without signing it as there is no time frame mentioned within which it is to be signed.
Many NGOs and civil rights groups have made representations to the state government demanding review of the ordinance. Except for a missive from the state convener of BJP’s intellectual cell, T G Mohandas, most of these representations however have not made their way to the governor.