New Delhi: Supreme Court on Tuesday said it would test the constitutional validity of a controversial provision of cyber law giving the police powers to arrest web users for posting objectionable contents, saying it would not consider the government's stand that it was open to changes.
"We have to judge the statute as it stands today. We are not concerned with your (government's) stand," a bench of justices J Chelameswar and Rohinton F Nariman said.
The court's remarks came when Additional Solicitor General Tushar Mehta said the government does not want to save "anyhow", section 66A of the Information Technology Act and is open to suggestions to "amend/change" the law in question.
"We are not in an adversarial litigation. The court can record my statement that the penal consequences, as provided in section 66A, will not be made applicable in cases relating to freedom of speech and expression of citizens," he said, adding that the court may consider making the offence under the provision as "non-cognizable".
This will create a situation where the criminal law will be set in motion after judicial scrutiny and police will not be able to act on its own, he said.
"How long will a gentleman remain in jail? He may remain in jail till a judge of the Supreme Court or any other court will apply the judicial mind," the bench said.
Dealing with the word "grossly offensive", the bench referred to the judgement cited by the ASG and said, "what is grossly offensive to you, may not be grossly offensive to me and it is a vague term."
"Highly trained judicial minds (judges of the UK courts) came to different conclusions by using the same test applied to judge as to what is grossly offensive and what is offensive," it said.
The bench then asked the ASG as to who will decide as to what are grossly offensive contents. "Of course, it is the SHOs and other policemen," it said.
The apex court is hearing a batch of petitions challenging constitutional validity of several provisions of the Act. The petitions primarily came in the backdrop of the arrest of two Maharashtra girls for making comments on the shutdown of Mumbai for the funeral of Shiv Sena Chief Bal Thackeray.
The ASG said loose terms were used in the provision to ensure that wide range of cyber crimes, which are rapidly expanding, could be brought under its ambit. It does not intend to curtail fundamental right of freedom of speech and expression of citizens, he added.
The ASG will resume his arguments tomorrow as they remained inconclusive.
The government's counsel also told the court that Section 66A does not curb freedom of speech and expression as enshrined in the Constitution.
"The very fundamental foundation of petitioner's case that provisions contained in section 66A of IT Act, 2000 scuttle freedom of speech and expression is misconceived.
"It is clarified that if any provision of Information and Technology Act, 2000 is found to be in conflict with the freedom guaranteed in Article 19(1)(a) of the Constitution of India, the same will have to be read in the context of and subject to Article 19(2) of the Constitution," he said.
The ASG also said that since it was the case of central government that if any of the provisions offended the freedom of speech and expression, it would not defend that part of the provision.