No person can be arrested for posting objectionable comments on social networking sites without permission of senior police officials. laying down this law, the Supreme Court on Thursday said prior permission from a top police official not below the rank of Inspector General in cities and Deputy Commissioner of Police or Superintendent of Police at district level was needed to arrest any person under the controversial Section 66A of the Information Technology Act, linked to objectionable material posted on the Internet.
A directive issued by the Supreme Court on Thursday gave legal force to an advisory issued by the Centre on January 9, 2013 containing this instruction.
What acted as a trigger for the Court to pass the order was the recent arrest of a People's Union of Civil liberties (PUCl) activist and lawyer Jaya Vindhyalaya who allegedly posted derogatory comments on her Facebook page
against an Andhra Pradesh MlA Amanchi Krishna Mohan and Tamil Nadu Governor K Rosaiah.
An application filed by one Shreya Singhal, whose petition challenging the constitutional validity of Section 66A of the IT Act is already pending before the Court, brought the Andhra incident to the attention of the apex court.
Arguing for Singhal, senior advocate Soli Sorabjee pointed out that the police was free to undertake investigations based on a complaint but should
not arrest.
A helpless Centre defended its position by citing the January 2013 advisory. Additional Solicitor General (ASG) Sidharth luthra appearing for the Centre stated that the said advisory put in place sufficient safeguards but States were at liberty to follow it since police was a State subject.
The advisory was issued in the wake of the arrest of two girls in Mumbai and a cartoonist in West Bengal under Section 66A.
Even PUCl appeared in court to inform that its activist had been released on bail. Finding no urgency to interfere in the Andhra case, the Vacation Bench of Justices BS Chauhan and Dipak Misra thought it apt to prevent abuse of Section 66A for the future by asking all States to comply with the Centre's advisory.
"Being a State subject, the guidelines are illusory. The Union of India had thought of a via media for this reason," the bench observed.
Given the facts and circumstances, the bench directed that till further orders in the main matter are expected to be taken up by the apex court in July, all States will comply with the advisory "to follow this guideline before an arrest takes place."