New Delhi: The Supreme Court today said the Information Technology Act provision, which gives power to arrest a person for posting objectionable comments on social websites, cannot be quashed on the ground that it does not have 'mens rea' (motive or knowledge of wrongdoing) as one of the pre-requisites to constitute an offence.
The court's observation came when a lawyer said Section 66A of the IT Act deserves to be quashed as it creates a situation where a person can be arrested and jailed despite the fact that he neither intended nor had the knowledge that he was committing an offence.
"Lack of mens rea cannot be the sole ground to declare a law as unconstitutional," a bench of justices J Chelameswar and S A Bobde said.
The bench is hearing various petitions seeking reliefs, including setting aside of some IT Act provisions.
Section 66A of the IT Act, whose constitutional validity has been challenged, provides the power to arrest a person, besides a jail term of maximum three years, for sending "offensive messages through communication service".
During the three-hour hearing, lawyers, appearing for PIL petitioners today sought setting aside of Section 66A on grounds including that it curtails the right to freedom of speech in an unreasonable manner and by using vague terms like "grossly offensive" information, "menacing character" of an information and "causing annoyance" in the provision.
"This provision silences a person as one does not know what is its limit and what constitutes an offence under it," a lawyer said.
However, the bench said "this law does not silence you. It stops you from saying something offensive. It does not injunct you from speaking, rather, it injuncts you saying something offensive. Freedom of speech does not mean you are free to say anything to anybody."
The terms like "grossly offensive" and "menacing character" of an information are not so "vague and any educated person and even uneducated persons understand their meaning," it said.
The apex court had, last year, said a person, accused of posting objectionable comments on social networking sites, cannot be arrested without police getting permission from senior officers.
The direction had come in the wake of numerous complaints of harassment and arrests sparking public outrage.
It had, however, refused to pass an interim order for a blanket ban on the arrest of such persons across the country.
One of the pleas has been filed by law student Shreya Singhal who has sought amendment in Section 66A of the Act.
Shreya had filed the PIL after two girls--Shaheen Dhada and Rinu Shrinivasan--were arrested in Palghar in Thane district under section 66A of IT Act after one of them posted a comment against the shutdown in Mumbai following Shiv Sena leader Bal Thackeray's death and the other 'liked' it.
On November 30, 2012, the apex court had sought a response from the Centre on the amendment and misuse of Section 66A of IT Act and also directed Maharashtra government to explain the circumstances under which they were arrested.