‘Facebook arrests unjustifiable, but law not ultra vires'

Bench also seeks response of Maharashtra, West Bengal and Puducherry; the provision is well-intended, says AG

The Supreme Court on Friday issued notice to the Union Government seeking its response to a petition challenging the Constitutional validity of Section 66A of the Information Technology Act, which many States allegedly misuse for arresting persons sharing messages on social networking websites. But Attorney-General G.E. Vahanvati maintained that the provision was well-intended.

A Bench of Chief Justice Altamas Kabir and J. Chelameswar also issued notice to Maharashtra and West Bengal, and the Union Territory of Puducherry, seeking their response in four weeks and rejoinder in two weeks. The Bench asked the Maharashtra government to inform the court of the action taken against police officers who arrested the two women, after one posted on Facebook a message questioning the shutdown in Mumbai after the death of a political leader and the other ‘liked’ it.

Initially, the Chief Justice told the Attorney-General: “There has been a concern over the manner in which the provision [Section 66A] is being used or misused.” Sharing his apprehension and referring to the Maharashtra arrest, Mr. Vahanvati said: “Being a non-bailable offence, arrest should not have been carried out at all.” The Chief Justice then said: “Obviously, there must be some motive for the cops to arrest the girls.”

Mr. Vahanvati said: “The action taken by the police… is unjustifiable and indefensible but that doesn’t mean Section 66A is

ultra vires .” It was based the U.K. and U.S. laws enacted in 2003 and 1996. “Please examine the validity, and I will assist the court…”

Referring to the guidelines, He said cases to be registered under the provision had to be decided by senior police officers in the rank of Director-General of Police for cases pertaining to rural areas, and in the rank of Inspector-General of Police for metros. “This can’t be done by the head of police stations.”

Senior counsel Mukul Rohatgi, appearing for the petitioner Shreya Singhal, however, pleaded for a directive that no cases be registered across the country unless such complaints were seen and approved by the Director-General of Police. But the Chief Justice told counsel: “We can’t pass such a blanket order because somebody has blundered the other day. If something is done, you bring it to our notice, let us see.”

Meanwhile, the Bench allowed the impleadment of cartoonist Aseem Trivedi, who was arrested under this provision by the Maharashtra police in September this year.

Besides highlighting the recent arrest in Maharashtra of Shaheen Dadha, 21, and Renu Srinivasan, Ms. Singhal pointed to various instances of the alleged misuse of the provision, including the arrest in April this year of Ambikesh Mahapatra, a chemistry professor of Jadavpur Univeristy, for having posted on social networking sites a cartoon of a West Bengal political figure; and that of businessman Ravi Srinivasan in Puducherry in October for the charges he made on Twitter against a Tamil Nadu politician.