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.
