New Delhi: The Centre has told the Supreme Court that the controversial provision in the cyber law under which two girls in Maharashtra were arrested for posting comments on Facebook does not curb freedom of speech and alleged "highhandedness" of certain authorities does not mean that it’s bad in law.
The Maharashtra government, which was also asked to make explanation on the episode, said the arrests of girls in Thane district for making comments on the shutdown of Mumbai for the funeral of Shiv Sena chief Bal Thackeray, were "unwarranted" and "hasty", which "cannot be justified".
"Under Section 41 and 41A of the Code of Criminal Procedure immediate arrest was not required. The arrests of the accused were hasty and cannot be justified. At the same time, the action was not with malafide intention," it said.
The Ministry of Communication and Information Technology, in its affidavit, defended Section 66A of the Information Technology Act under which the two girls from Palghar were arrested by Thane police.
"The alleged highhandedness of certain authorities does not mean that section 66A of the IT Act is bad in law," it said.
It said the provision does not curb freedom of expression and speech guaranteed under Article 19(1) of the Constitution, as it does not provide absolute freedom but imposed certain reasonable restrictions.
The Maharashtra government said, "In the circumstances aforesaid it is respectfully submitted that the government of Maharashtra has taken a very serious view of the matter relating to the arrest of Shaheen Dhada and Rinu Srinivasan. The arrests were totally unwarranted.
"The government of Maharashtra respectfully submits that it is cognizant of the chilling effect that such incidents could create and has taken firm action in the matter."
The apex court had on November 30, 2012 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.
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 imposing appropriate fine.
The affidavit filed by the Maharashtra government said the Thane police SP (Rural) has been suspended for arresting the two girls despite the instruction by the Inspector General of Police not to take such action.
"SP, Thane (Rural) Ravindra P Sengaonkar was responsible for the hasty arrests. The decision was taken at his level. Shifting the blame on junior officers was unacceptable and absolutely incorrect and hence, administrative action was recommended against him.
"It was recommended that Additional SP be issued a letter of displeasure for not going in details and for failure to prevent falsification of records," it said.
The affidavit said that the investigating officer of the case also came to the conclusion that no offence under Section 505 (2) (statements conducing to public mischief) of the IPC read with Section 66 A of the Information Technology Act were made out against the two girls.
As regard to the SP, a draft charge sheet has been submitted to the Maharashtra government for approval, it said.
The affidavit said that the police booked 30 Shiv Sainiks for vandalizing the clinic of the uncle of one of the arrested girls Shaheen Dhada.
The ministry`s affidavit said the advisory issued by the Centre not to effect arrest under Section 66A of the IT Act without prior permission from senior police officers would rule out unnecessary detentions in future.
It also provided the data about internet users in the country and also the danger of internet misuse.
"The misuse of information technology, particularly the social media sites, has been witnessed by the country in the recent past when e-mails were sent, messages posted on social media sites attaching morphed images purported to certain incidents," it said.
The Centre`s affidavit also suggested that the court may "issue guidelines to the police, judicial officers and service providers for effective implementation of Section 66 A of the IT Act."
It said in the affidavit that an advisory has 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.
"Recently certain incidents have been reported wherein Section 66A of the IT Act, 2000 has been invoked solely as well as with other sections of the IPC against certain persons for posting/communicating certain content which was considered by the police to be harmful.
"Such action attracted lot of media attention and resulted in protest from the civil society, citizens and MPs in different parts of the country," the affidavit quoted the advisory said.
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.
The girls -- Shaheen Dhada and Rinu Shrinivasan -- were arrested in Palghar in Thane district under Section 66A of the IT Act after one of them posted a comment against the shut down and the other `liked` it.
Shreya, in her plea, had said that "unless there is judicial sanction as a prerequisite to the setting into motion the criminal law with respect to freedom of speech and expression, the law as it stands is highly susceptible to abuse and for muzzling free speech in the country."
In her plea, she has submitted that "it would amount to little consolation to say that the right to free speech of a citizen will eventually be vindicated at the end of an extended legal proceeding.