The Supreme Court on Tuesday observed that Section 66A of the Information Technology Act, which empowers police to make arrests over social media posts, apparently lacked guidelines on when such power can be exercised and that somebody’s “annoyance” was enough in certain cases for invoking the law.
“Section 66A does not give any specific guidance on when to invoke it, unlike the provisions in the Indian Penal Code (IPC). The IPC uses specific words and gives specific illustrations for the offences but that does not appear to be the case with Section 66A. It appears that nobody has to even say anything hateful or meaning ill will… annoyance of someone could be used to invoke it,” said a bench of Justices J Chelameswar and S A Bobde.
The court’s observations came even as the central government admitted that Section 66A was prone to abuse and that there were indeed incidents in the past where people were wrongly arrested by invoking this provision. Section 66A defines the punishment for sending “offensive” messages through a computer or any other communication device like a mobile phone or a tablet. A conviction can fetch a maximum of three years in jail and a fine.
Additional Solicitor General Tushar Mehta submitted that the abuse of power in certain cases was “evident” and that the Centre did not seek to justify the incidents where whimsical arrests were made. He said in most of the incidents, cited by a batch of petitions that have challenged the constitutional validity of Section 66A, the power was abused and actions had been taken against the erring police officers.
The list of incidents included arrest of two girls in Maharashtra by Thane Police in 2012 over a Facebook post, arrest of Jadavpur University professor Ambikesh Mahapatra for forwarding caricature on Trinamool Congress chief Mamata Banerjee on Facebook, arrest of Aseem Trivedi for drawing cartoons lampooning Parliament and the Constitution to depict their ineffectiveness.
“If there is abuse and the abuse is so egregious, even in some cases, there is definitely an issue to be heard and decided regarding the validity of such a provision,” retorted the court.
As the final arguments on the petitions began, the bench sought to know if the provisions in the IPC were not adequate to deal with the offences arising out of electronic messages and hence Section 66A was drafted in the IT Act.
Senior advocate Soli Sorabjee, Prashant Bhushan and Sanjay Parikh, appearing for the petitioners, replied that not only were the IPC provisions enough, they were better drafted and explained the circumstances when the alleged offences could be attracted. This, they contended, was not the case in Section 66A which was vague and left it to the subjective discretion of the police to decide when to arrest.
At this, the bench replied that in most of the cases cited by the petitioners, there was no statement which could have threatened the integrity of the country, as alleged by the police. It said the word “offensive” may be construed differently in different context and that not everything would make a criminal offence. The bench will resume hearing on Wednesday.
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