The apex court, which refused to pass an order for a blanket ban on the arrest of a person for making objectionable comments on websites, said state governments should ensure strict compliance of the Centre’s January 9 advisory which said that a person should not be arrested without taking permission from senior police officials.
“We direct the state governments to ensure compliance with the guidelines (issued by Centre) before making any arrest,” a bench of justices B.S.Chauhan and Dipak Misra said.
It said the court cannot pass an order for banning all arrest in such cases as operation of section 66A (pertaining to objectionable comments) of the Information Technology Act has not been stayed by the apex court which is examining its constitutional validity.
In view of public outrage over people being arrested for making comments or liking posts on Facebook, Centre had on January 9 issued advisory to all states and UTs asking them not to arrest a person in such cases without prior approval of a senior police officer.
The advisory issued by the Centre says that, “State governments are advised that as regard to arrest of any person in complaint registered under section 66A of the Information Technology Act, the concerned police officer of a police station may not arrest any person until she/he has obtained prior approval of such arrest from an officer, not below the rank of Inspector General of Police (IGP) in metropolitan cities or of an officer not below the rank of Deputy Commissioner of Police (DCP) or Superintendent of Police (SP) at district level, as the case may be.”
The apex court was hearing an application seeking its direction to the authorities not to take action for posting objectionable comments during the pendency of a case before it pertaining to constitutional validity of section 66A of the Information Technology (IT) Act.
The section states that any person who sends, by means of a computer resource or communication device, any information that was grossly offensive or has a menacing character could be punished with imprisonment for a maximum term of three years, besides imposition of appropriate fine.
The petition was also filed regarding the arrest of a Hyderabad-based woman activist, who was sent to jail over her Facebook post in which certain “objectionable” comments were made against Tamil Nadu Governor K.Rosaiah and Congress MLA Amanchi Krishna Mohan. After filing of the petition, she was released by a district court at Hyderabad.
Jaya Vindhayal, the state general secretary of People’s Union for Civil Liberties (PUCL), was arrested on May 12 under section 66A of the IT Act for the “objectionable” post.
According to the police, she had also allegedly distributed pamphlets making objectionable allegations against Rosaiah and Mohan before posting the comments online.
The matter was mentioned before the bench by law student Shreya Singhal, seeking an urgent hearing in the case, saying the police is taking action in such matters even though a PIL challenging validity of section 66A is pending before the apex court.
She 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 shutdown 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 the 21-year-old girls were arrested.
Pursuant to the notice issued by the apex court, the Centre had informed it that the controversial provision in the cyber law under which two girls were arrested for Facebook comments did not curb freedom of speech and alleged “high handedness” of certain authorities did not mean that it was bad in law.
The Ministry of Communication and Information Technology in its affidavit had said that an advisory had been issued to all the state governments, saying that due diligence and care may be exercised while dealing with cases arising out of the alleged misuse of cyberspace.
The Maharashtra Government in its reply had said the arrests of girls in Thane district were “unwarranted” and “hasty”, which “cannot be justified“.
The state government had also submitted an affidavit stating that the Thane police SP (Rural) had been suspended for arresting the two girls despite the instruction by the IGP not to take such action.
The court had earlier issued notices and sought responses from governments of Delhi, 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.