The petitioners Rohan Bhammer and Varun Nair had moved the High Court seeking to prevent misuse of the IT Act as it is a non cognisable offence.
“Whatever is expressed on Facebook, Twitter, Linkedin, Google Plus, Skype, Bling does not amount to any cognisable offence and the police cannot arrest any person for posting comment,” counsel for the petitioners, Ajesh Kumar submitted to the court.
He further submitted that the police cannot arrest any person as the communication on social media is private communication between two persons and intercepting it or prosecution amounts to grave violation of Article 14 of Constitution of India.
“Any prosecution cannot be done without recording the sworn statements,” he said, stressing the need to educate the police department in the implementation of the Act.
Citing examples, Ajesh said three persons including two girls were arrested by Maharastra police for posting comments on Facebook criticising Maharashtra Navnirman Sena Chief Raj Thackeray and shutdown of Mumbai for Bal Thackeray's cremation.
Pointing to the incident of cartoonist Aseem Trivedi, the Pondicherry-based businessman who tweeted on Karthik Chidambaram, son of Union Home Minister P Chidambaram and West Bengal professor who faced the wrath of Chief Minister Mamata Banerjee for posting comments and cartoons, the petitioner said, “the provisions of Section 66-A of the IT Act have the potential of being a subject of gross abuse or misinterpretation by the Police, sometimes at the behest of powerful people.”
“It could also be arising from a multitude of reasons like ambiguity, ignorance of what is private and public communication, knowledge about social networking sites, lack of difference in publication in physical form and e-media.”
Stating that an estimate of 12 crore users of internet communicate through emails and social networking sites, the counsel said the State and Union of India appear to be sleeping on the abuse or misuse by the police while innocent persons are facing threat. He sought directions to stop the arrests of innocent public, just based on a complaint unless there is an order by the jurisdictional magistrate, who has the power to try the case or to commit the case to trial and prevent the arrests of the innocent.
The division bench comprising acting Chief Justice K Sreedhar Rao and Justice Abdul Nazeer has ordered notice to the State government, Union government and others.
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