"The Maharashtra government is directed to explain the circumstances under which the two girls -- Shaheen Dhada and Rinu Shrinivasan -- were arrested for posting comments made by them on Facebook," a bench comprising Chief Justice Altamas Kabir and Justice J Chelameswar said.
The bench asked the state government to file its response within four weeks on the public interest litigation filed by a Delhi [ Images ] student, Shreya Singhal.
The bench also made as parties the governments of West Bengal [ Images ] and Puducherry where similar incidents had happened in the recent past. It also issued notice to the Delhi government along with them and sought their response within four weeks and posted the matter for hearing after six weeks.
Attorney General G E Vahanvati, whose assistance was sought by the court, said, "Please examine section 66 A of the Information Technology Act, 2000 and I will assist the court on this issue."
The AG also referred to the guidelines, which say that cases to be registered under the provision of the IT Act has to be decided by senior police officials of the ranks of the director general of police for cases pertaining to rural areas and IGP for metros.
"This can't be done by the head of the police stations," the AG said, adding that this was a matter, which required the court's consideration.
Meanwhile, senior advocate Mukul Rohatgi, appearing for Shreya, sought a direction from the court that no cases be registered across the country unless such complaints are seen and approved by the DGP of the state concerned.
During the hearing, the AG said that the arrest of the two Mumbai-based girls was unjustified but it does not mean that section 66 A should be done away with as the provision was well intended.
Rohatgi said that the provision of the IT Act, which gives power to arrest, is "wholly unconstitutional" and needed to be done away with. "The provision is unconstitutional. Of course, it would be decided by the Supreme Court," he said, adding that a direction to all the states was required that no case be registered under this provision unless the complaint is seen and approved by the DGP concerned of the state as "the law and order is a state subject and unless there is some kind of order from this court, this (abuse of the provision) may not stop."
There are thousands of police stations in the country and, hence an order from this court is needed, Rohatgi said, to which the bench said that all police stations are not alike.
Meanwhile, some other civil rights group and NGOs submitted to the court that they be also allowed to intervene as parties to the ongoing hearing on this issue.
"Not only one section, there are other provisions of the Act and the rules which are unconstitutional," Prashant Bhushan said, while seeking to intervene as a party.
Rohatgi said, "I have no objection if a person is allowed to intervene..."
On Thursday, while agreeing to hear the PIL seeking amendments to the IT Act, the bench had said, "The way the little children were arrested, it outraged the sentiments of the people of the country. The way these things had been taking place needs consideration."
The petitioner, Shreya, in her plea, has contended that "the phraseology of Section 66A of the IT Act, 2000 is so wide and vague and incapable of being judged on objective standards, that it is susceptible to wanton abuse and, hence falls foul of Article 14, 19 (1)(a) and Article 21 of the Constitution."
Shreya, in her plea, has said, "Unless there is judicial sanction as a prerequisite to the setting into motion the criminal law with respect to freedom of speech and expression, the law as it stands is highly susceptible to abuse and for muzzling free speech in the country."
Apart from the arrests of the two Mumbai-based girls, Shreya has also referred to an April 2012 incident, when a chemistry professor from Jadavpur University in West Bengal, Ambikesh Mahapatra, was arrested for posting a cartoon concerning a political figure (West Bengal Chief Minister Mamata Banerjee [ Images ]) on social networking sites.
She has also referred to the arrest of businessman Ravi Srinivasan in October this year by the Puducherry police for having made allegations on Twitter against a politician from Tamil Nadu as well as the May 2012 arrests of Air India [ Images ] employees V Jaganatharao and Mayank Sharma by the Mumbai [ Images ] police for posting contents on Facebook and Orkut against a trade union leader and some politicians.
In her plea, she has submitted, "It would amount to little consolation to say that the right to free speech of a citizen will eventually be vindicated at the end of an extended legal proceeding. Hence, it is submitted that the protection of the fundamental right to free speech necessitates the existence of a safety walls at the very threshold of setting the criminal law into motion," she has said.
The petitioner has sought issue of guidelines by the apex court, to "reconcile section 41 and 156 (1) of the Criminal Procedure Code with Article 19 (1)(a) of the Constitution" and that offences under the Indian penal Code and any other legislation, if they involve the freedom of speech and expression, be treated as a non-cognisable offence for the purposes of Section 41 and Section 156 (1).
Section 41 of the CrPC empowers the police to arrest any person without an order from the magistrate and without a warrant in the event that the offence involved is a cognizable offence. Section 156 (1) empowers the investigation by the police into a cognisable offence without an order of a magistrate.
Image: Shaheen Dhada was arrested by the police for their Facebook comment and Rinu Shrinivasan for 'liking' the post