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Friday, November 30, 2012

Change your ways Emperor-has-no-clothes moment, twice over - SC to examine IT harass rule

Change your ways
Emperor-has-no-clothes moment, twice over
- SC to examine IT harass rule


New Delhi, Nov. 29: The Supreme Court today voiced the country's "outrage" and agreed to examine the constitutional validity of Section 66A of the IT Act, the clause that has been invoked to torment two girls in Maharashtra, a professor in Calcutta and several others across the country.

A bench of Chief Justice Altamas Kabir and Justice J. Chelameshwar asked attorney-general G.E. Vahanvati to be present in the court on Friday morning when it would take up the matter but rejected the plea for a stay of the provision.

The court did not immediately stay the operation of Section 66A, under which those found guilty of sending offensive messages through a communication service can be punished up to three years.

But the Centre today decided to advise states not to invoke the rule without permission from officers ranked inspector-general or above in the metros and deputy commissioner or superintendent of police or above in other urban or rural areas. In Maharashtra as well as Bengal, officers far below the threshold ranks had executed the crackdowns. ( )

Union IT minister Kapil Sibal today chaired a meeting of the country's apex cyber law panel where 66A was high on the agenda. Sources said the advisory to the states was expected to be placed before the court tomorrow.

Some sources who attended the meeting said they came away with the feeling that the minister was aware of the problem but they were not sure how far the government would go in revising or doing away with the clause.

Sibal told NDTV tonight that the government would "revisit" the clause and was open to putting in place safeguards.

The Supreme Court bench asked the petitioner to make Bengal, Maharashtra and Puducherry parties to the case because of the specific incidents in each of the three states. Petitioner Shreya Singhal, a Delhi girl, had originally named the Union home and information technology ministries.

"The way things had taken place needs some consideration so that in future, it does not take place. Yes, there was also the incident involving a professor from Jadavpur and the chief minister," said Chief Justice Kabir, who hails from Bengal and had served in Calcutta High Court.

The bench's observation came after senior counsel Mukul Rohtagi made a submission on a PIL filed by Singhal.

Referring to the Maharashtra clampdown in which the two girls were arrested, the apex court said: "It outrages the sentiments of the country the way the two children were arrested."

The bench, however, rejected for "now" Rohtagi's plea to stay the provision and pass an interim directive that police henceforth shall not arrest any person under the provision without prior permission from an officer of the rank of inspector-general. (The cyber panel cleared a similar guideline.)

The petition, filed through counsel Ninad Laud, submitted that recent events involving action taken by various authorities under Section 66A "have left a chilling effect on the petitioner and crores of other Internet users".

Section 66A should be quashed as it violates Article 14 (equality before law), 19 (freedom of speech) and 21 (liberty) of the Constitution of India, the petition said.

"…The phraseology of the section is so wide and vague and incapable of being judged on objective standards that it is susceptible to wanton abuse. This provision is indeed capable of wanton abuse in view of the subjective discretion of the police and the susceptibility of it being invoked cavalierly," the petition said.

The petition pointed out how Section 66A was being clubbed with Section 41 of the CrPC which empowers the police to arrest any person without an order from a magistrate and without a warrant if the alleged offence is a "cognisable offence". The police also use Section 156 (1), which allows investigation into a cognisable offence without an order of a magistrate.

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