The direction by Justices P V Hardas and A M Thipsay came on a PIL which contends that the section would not apply if the message is in the public domain, such as the social networking sites, or a blog, or a website. The court has sought replies within four weeks.
The petition has been filed by Majoj Oswal of the NGO 'People for Animals' (headed by BJP MP Maneka Gandhi). He contends that section 66A is unconstitutional, and arrests under the same be stayed while the petition is being heard. It can also be misused against the media as almost all the TV channels and newspapers are available over the Internet, the petitioner points out.
He cites the instances such as arrest of two girls at neighbouring Palghar over criticism - on Facebook - of shut-down in Mumbai after the death of Bal Thackeray, and the earlier arrest of cartoonist Aseem Trivedi over his cartoons.
The petition contends that the section 66A has not been analysed from a technological aspect, and it does not apply to Facebook, Twitter, websites, blogs, etc. It applies where only a sender and receiver are involved, it says.
The section criminalises the communication not on the basis of content, but the medium, it argues, because the same communication would be deemed legal if published in newspaper, but if put on Internet, it would attract three years in jail.
Also, the petitioner points out, it does not distinguish between major and minor offences.
"Someone may call a person a fool, and another person may threaten to kill someone, but the punishment would be same in both the cases."