An NGO has challenged the validity of section 66 A of Information Technology Act, which penalises sending false and offensive messages through communication services, in a PIL, saying it would not apply to general public and individuals if the content is in public domain.

The petition, filed by Pune unit chief of People for Animals headed by BJP MP Maneka Gandhi, has questioned whether this section can apply to information within public domain such as Facebook, Twitter, blogs, websites and other forms of communication which is for public and not just individuals.

In his petition, Manoj Oswal has contended that section 66 A was ultra vires the constitution and sought directions to stay arrests or filing of cases against people who disclose information in public domain.

Oswal cited the instance of posts made by two Palghar girls on Facebook who were arrested for criticising 'Mumbai Bandh' during Shiv Sena Chief Bal Thackeray's funeral in November last.

He also referred to the arrest of cartoonist Aseem Trivedi for airing his opinion through his creative works on the Internet and argued that such arrests were illegal.

Oswal said he had created a website www.Savelila.In against Prataprao Pawar, brother of NCP Chief Sharad Pawar, for allegedly grabbing land of an animal shelter and illegally detaining a lady in her own house. The cyber crime branch of Pune police had arrested him for making such a website as it had caused "inconvenience" to complainant Prataprao Pawar.

Oswal filed a petition challenging the FIR against him and sought directions from High Court to quash it after which the court stayed the proceedings against him.

However, during the course of arguments, an issue was raised whether law can suppress public opinion on a topic.

The petitioner questioned the validity of the law and, considering the larger issue involved, filed a separate PIL challenging section 66 A of IT Act.

The matter was heard before a bench headed by Justice A M Khanwilkar on January 31 when the union government counsel urged that it may be heard along the petition for quashing FIR against Oswal.

The petition was placed before another bench of Justices Abhay Oka and A P Bhangale, which heard arguments and posted it for further hearing on February 27.

The petitioner argued that the impugned law had not been analysed from technological aspect and it simply did not apply to facebook, twitter, websites, blogs etc.

As per the law, as it stands today, it applies to 'sending' offensive communication over computer network. This essentially means it only applies to communication where a sender and receiver are involved.

Distribution/circulation/publication/telecast or other words used for 'making information public' cannot be equated with 'sending' information. The petitioner, therefore, sought stay on any arrests on cognisance of offence against people who post information in public domain.

The petitioner argued that the law itself was ultra vires (beyond authority of law) as it criminalizes the communication not on the basis of content but the medium.

The same communication would be legal if published in newspaper or magazine but if carried on a website or facebook the person can face 3 years in jail, he argued.

He contended that the law is also "absurd" on the ground that punishment for minor and major offences is the same. If someone calls a person a 'fool' over Internet and another person intimidates to kill someone, the punishment would be same for both despite one making an innocuous comment and another threatening to kill a person, the petition argued.

The law can also be misused against the media as almost all TV channels and newspapers today are available over the Internet, the petitioner said.