The Supreme Court on Wednesday said it was “sure” that Section 66A of the Information Technology Act, which empowers police to make arrests over social media messages, “does not silence anyone”.
With the provision being challenged over its constitutional validity, a bench of Justices J Chelameswar and S A Bobde observed: “If you (petitioner) don’t know who are you taking to, who all will have access to your messages and who could finally get offended, does it not obligate you to be more careful? Don’t equate right to speak with right to offend. You can always exercise your right to speak, your freedom of speech and expression without offending people. Law does not silence anyone. But it may ask you not to offend anyone by what you speak.”
Senior advocate Sajan Poovayya, who represented one of the petitioners in a batch of pleas that have sought get Section 66A declared unconstitutional, replied that this may have a “chilling effect” on one’s right to speech since what is offensive is a matter of subjectivity. He also said that the “vagueness” in defining what was offensive could land a person in jail for three years under Section 66A.
“We agree it is a vexed issue, but we wonder if an injunction to be careful is being treated as an injunction to be silent. It is a law that does not silence anyone and we are sure about that… Sending someone to jail for three years is also a question,” retorted the bench.
It added that the freedom to speak never intended to grant a liberty to speak anything against anyone and that there have been similar laws in other statutes where people were prosecuted for offences without explicit mens rea (intention).
Poovayya had argued that Section 66A entailed imprisonment although there could be no intention by somebody, who sent a message or simply forwarded it, to offend anyone.
At this, the bench asked Additional Solicitor General Tushar Mehta if the government was sending people to jail without an intention to commit an offence.
Mehta cited several other laws, including those relating to rash driving and putting up obscene posters in a public place, where no explicit “mens rea” was required to attract prosecution.
Mehta also justified that mere sending a contentious message was adequate and that the recipient did not need to even open the mail. He cited malware and viruses as illustration, where the recipient did not require to open his mail but the sender could be booked under Section 66A.
The bench will resume hearing petitions on Thursday.