Arrests for posting comments on sites were grave, brazen: SC

The Supreme Court today did not agree with the contention of the Centre that arrests of some persons for allegedly posting objectionable comments on social websites were "stray incidents", saying that even if they were aberrations, they were "brazen" and "grave".

The counsel for the Centre told a bench headed by Justice J Chelameswar that though he was not justifying the arrests made under section 66A of the Information Technology Act, they were "aberrations" and "stray incidents" of misuse of statutory powers by the authorities.

"Even if they were aberrations and some stray incidents, the violations of rights were very brazen and grave," the bench, which is hearing various petitions seeking reliefs, including setting aside of some IT Act provisions, said.

Section 66A of the IT Act has courted controversy as it provides the power to arrest a person, besides a jail term of maximum three years, for allegedly sending "offensive messages through communication service".

Initiating the arguments, senior advocate Soli Sorabjee, appearing for one of the petitioners, said, "The right to freedom of speech and expression under Article 19 (1) (a) of the Constitution must be preserved and it is not open to the state to curtail this right. It can be subjected to reasonable restriction as provided under Article 19 (2) alone."

He sought setting aside of section 66A of the Act on the ground of "vagueness" and said the expressions like -- "grossly offensive" information, "menacing character" of an information and "causing annoyance" -- have not been defined.

"The provisions, which have been vague, have been struck down in the past. Any public statement may annoy somebody," he said.

The bench then referred to the recent controversy in Parliament over alleged remarks of a minister and said, "It depends upon various factors. The word 'offensive' may be construed differently in different contexts. The nature and meaning of offensive words vary from person to person.

"Any attempt to stifle criticism will amount to censorship. A person may be upset and annoyed but it cannot be a ground to impose censorship," Sorabjee said.
"Things can be offensive without being indecent," the court said, adding, "One cannot make out a criminal offence. They (statements) may be undesirable and unpleasant."

The bench also wanted to know as to whether the penal provision in the IT Act has come into being because IPC was inadequate to deal with new kind of offences.
"We expect you to tell us as to whether IPC was inadequate to meet the demands" in a new given situation where mobiles and electronic media have emerged, it said, adding that it would examine the constitutional validity of section 66A of the Act.

Prashant Bhushan, appearing for NGO 'Common Cause', also sought setting aside of three IT Act provisions including section 66A, saying, "These are unreasonable provisions and will kill democracy.

"The freedom of speech and expression is an extremely important fundamental right and it cannot be curtailed without observing the reasonable procedure," he said.
Bhushan, however, said that he was "virtually" not seeking setting aside of section 69A of the Act which deals with the power to block websites.

The hearing remained inconclusive and would resume tomorrow.Earlier, the apex court had said that a person, accused of posting objectionable comments on social networking sites, cannot be arrested by the police without getting permission from senior officers.
The direction had come in the wake of numerous complaints of harassment and arrests sparking public outrage.

It, however, had refused to pass an interim order for blanket ban on the arrest of such persons across the country.One of the pleas has been filed by law student Shreya Singhal who has sought amendment in section 66A of the Act.

Shreya had filed the PIL after two girls--Shaheen Dhada and Rinu Shrinivasan--were arrested in Palghar in Thane district under section 66A of IT Act after one of them posted a comment against the shut down in Mumbai following Shiv Sena leader Bal Thackeray's death and the other 'liked' it.

On November 30, 2012, the apex court had sought response from the Centre on the amendment and misuse of section 66A of IT Act and had also directed the Maharashtra government to explain the circumstances under which they were arrested.