The arrest of two Mumbai girls over an offensive Facebook post was an “aberration” that showed abuse of power, said the Centre in the Supreme Court on Tuesday. The statement was made by a law officer of the Centre when court was hearing arguments on the constitutional validity of Section 66A of the Information Technology Act.
This is the first time the Centre has admitted that action under Section 66A can amount to abuse of power giving fresh impetus to the ongoing debate in the Supreme Court to scrap the draconian provision that vests sweeping powers with police and State administration to arrest and harass any person for an online content perceived to be “annoying, mischievous or inconvenient”.
So far, the Centre has maintained a stand that all action under Section 66A was justified and cannot be termed as infringement of citizen's Constitutional right to free speech and expression under Article 19(1)(a). In an affidavit filed in January this year, the Ministry of Communication and Information Technology (MoCIT) stated, “The content, purpose and effect of Section 66A of IT Act clearly shows that it is regulatory in nature.” To overcome possible excesses in exercise of this power, the Centre was content with the advisory issued to all states requiring prior permission of senior police officials before arresting a person.
With the change of regime at the Centre, this was the first time the Centre got an opportunity to spell out its stand on the issue. Additional Solicitor General Tushar Mehta who appeared for the MoCIT said, “The individual cases cited in these petitions were aberrations showing abuse of power.” Not seeking to justify the instances involving the Mumbai girls who were rounded up for criticising the bandh call given by Shiv Sena, Mehta added, “Instances in these petitions are abuse of power but these are the cases for which the statute is intended.”
The Bench of Justices J Chelameswar and SA Bobde, commented, “The abuse in these cases is so egregious to start with.” It then proceeded to hear senior advocate Soli Sorabjee, appearing for one of the petitioners Shreya Singhal, who argued that the wide scope of powers provided under Section 66A had a chilling effect on the Fundamental Right to free speech and expression.
Advocate Prashant Bhushan who appeared for NGO Common Cause told the Bench that there is need to define the words “annoying” and “inconvenient” as the provision in its present form allowed police to wield arbitrary control to snub free speech and expression of artists, writers, activists, and others. Moreover, according to the petitioners, any critical comment is bound to be inconvenient to an individual or organisation. The Bench will continue hearing arguments on Wednesday.