The Supreme Court on Friday decided to examine a controversial provision in the IT law under which two girls in Maharashtra were arrested for posting comments on Facebook on the shutdown for Bal Thackeray's funeral, saying it is very "wide" and can be invoked against anybody.
working of this section can lead to any kind of action by the police as it is very wide and can be applied against everybody or anyone can be arrested," the apex court observed while directing Maharashtra government explain the circumstances under which the girls were arrested.
The girls--Shaheen Dhada and Rinu Shrinivasan--were arrested in Palghar in Thane district under section 66A of the Information Technology Act after one of them posted a comment against the shut down and the other 'liked' it.
"On the very first day, when we saw the incident (in the press), we were inclined to examine this matter," said a bench of chief justice Altamas Kabir and justice J Chelameswar which sought response from the Centre on the amendment and misuse of the provision. Section 66A of IT Act is vague, can be misused: legal experts
It also issued notices and sought responses from governments of West Bengal and Puducherry where a professor and a businessman were arrested under section 66A of the Act for a political cartoon and tweeting against a politician respectively.
Delhi Government was also asked to respond.
Attorney general GE Vahanvati replied in the affirmative to the suggestion of the bench that this action of the police was "motivated" and said, "the action of Maharashtra police is not justiciable and in fact, it is indefensible."
Vahanvati, whose assistance was sought by the court, said, "Please examine section 66A of the Information Technology Act, 2000 and I will assist the court on this issue." Police unclear about the section
However, the AG, said that it did not mean that section 66A should be done away with as the provision was well intended. Blog: A cartoon on the Freedom of Expression vs 66A!
"An abuse of the section does not make it ultra-vires. This section is based on cognate provision in other jurisdiction such as 2003 Act of United Kingdom and the 1996 Act of United States (on the IT laws)," Vahanvati submitted and added that according to him, this section can be justified.
The AG also referred to the guidelines, to be implemented, which say that cases to be registered under the provision of the IT Act has to be decided by senior police officers.
"This can't be done by the head of the police stations," the AG said, adding that this was a matter which required the court's consideration.
The bench concluded the brief hearing by ordering that "the Maharashtra government is directed to explain the circumstances under which the two girls - Shaheen Dhada and Rinu Shrinivasan - were arrested for posting comments made by them on Facebook."
The bench asked the Centre and the four state governments to file their response within four weeks on the PIL of Shreya Singhal, a Delhi-based student and posted the matter for hearing after six weeks.
The attorney general also said the act of Maharashtra Police was unjustified as they did not only invoke Section 66A of the IT Act but also Section 295 and 505 of the IPC dealing with malicious act disturbing religious harmony and mischief.
Later, the IPC sections were dropped against the girls.
Shreya Singhal filed a PIL in the Supreme Court challenging the constitutional validity of Section 66A of the IT Act. Agencies
During the hearing, senior advocate Mukul Rohatgi, appearing for Shreya, sought a direction that no cases be registered under the provision across the country unless such complaints are seen and approved by the DGP of the state.
He also said the provision, which gives the power to arrest, is "wholly unconstitutional" and needed to be done away with.
"The provision is unconstitutional. Of course, it would be decided by the Supreme Court," he said adding a direction from the apex court was needed as "the law and order is a state subject and unless there is some kind of order from this court, this (abuse of the provision) may not stop." There are thousands of police stations in the country and, hence an order from this court is needed, Rohatgi said, to which the bench said all police stations are not alike.
Meanwhile, some other civil rights group and NGOs submitted that they be also allowed to intervene into ongoing hearing on this issue.
"Not only one section, there are other provisions of the Act and the rules which are unconstitutional," said Prashant Bhushan, while seeking to intervene as a party in the PIL.
Rohatgi said, "I have no objection if a person is allowed to intervene..."
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(With PTI inputs)
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