This article is written by Tanmay Durani, 3rd year law student at the Rajiv Gandhi National University of Law, Punjab.
Recently, the Karnataka High Court delivered its judgment in X Corp. v. Union of India. The case dealt with the validity of so-called ‘blocking orders’ made by the Ministry of Electronics and Information Technology under section 69A of the Information Technology Act, 2000 (‘IT Act’) which bar public access to information by suspending certain Twitter accounts. Though there were eight issues before the Court in the X Corp. case, the focus of this piece will be confined to those which directly impinge upon the freedom of speech and expression in India.
Of late, freedom of speech and expression has been a heavily debated topic, especially in light of incidents like the farmer’s protest, revocation of Article 370. The question of ‘how much freedom is too much freedom?’ has been raised time and again. Tweets on twitter, and posts on Instagram and Facebook, questioning the Government have allegedly been taken down following the issue of blocking orders. However, Twitter, decided to raise concerns over such orders and went into a voluntary non-compliance. When threatened with ‘serious consequences’, Twitter applied to the Karnataka High Court to challenge the blocking orders.
The Court initially decided whether Twitter had standing (locus standi) to bring the challenge. It held that even though Twitter was a foreign juristic entity with limited rights in India, the wide scope of Article 226 of the Constitution, provided the requisite jurisdiction to the court to hear the challenge. The Court took note of the blocking orders, the procedures involved and their potential effects on freedom of speech and expression in India.
In the contention concerning the validity of MeitY's account-blocking orders, the Court addressed the key question of whether Section 69A of the IT Act granted the power to block entire accounts or was limited to specific tweets or content. Twitter argued that Section 69A only applied to information existing at the time of the blocking order and not to future content, asserting that blocking entire accounts exceeded the scope of the provision. However, the Court rejected this argument, emphasizing the preventive purpose of Section 69A in curbing threats to public order before they could materialize. Consequently, the Court held that the power conferred by Section 69A indeed included the authority to block entire accounts, not solely specific tweets or content. Despite Twitter's claim for proportionality, the Court ruled that the state's objectives could not be adequately achieved through tweet-specific blocking alone, as the character and conduct of the account originators played a crucial role in justifying the necessity of account-level blocking.
Further, the third issue pertained to the content of the challenged blocking orders, which lacked any stated reasons for their issuance. On this question of the requirement of ‘reasons to be recorded in writing’ under Section 69A of the IT Act, the Court noted that this does not mean ‘reasons to be recorded and communicated’. Thus, the court meant that even though reasons for the blocking orders were not communicated to Twitter, the mere presence of such reasons on the documents supplied to the Court in sealed cover, were enough to prove them as “reasoned orders”, because they displayed the ‘anti-national’ and ‘seditious’ nature of posts on the accounts. This was a strict departure from the Shreya Singhal judgment, which on the issue of online speech and intermediary liability in India, held that such reasons have to be provided in the blocking order itself and cannot be outsourced. The Karnataka HC ruling establishes a significant (and dangerous) precedent, stating that the procedural safeguards, which are otherwise typically unrelated to content, can be withheld from individuals on the basis of the Court's evaluation of their nationalistic character.
The Shreya Singhal judgment, the court addressed the issue of notifying the "originator" (person who sends or transmits electronic messages, as defined by Section 2(z)(a) of the IT Act) and the "intermediary" (in this context, the social media company), when issuing blocking orders. The court recognized the argument that the conjunction "or" should be interpreted as "and" to uphold the validity of rule 8(1), which mandated notice to be given to both the intermediary and originator. However, the court found this interpretation to be far-fetched and concluded that it is not necessary to communicate the notice to both the intermediary and the originator, thereby clamping down upon the principles of natural justice.
With the ratio extended by the court, the decision is likely to cause a chilling effect on the freedom of speech and expression. It is worrisome that the Court disagreed with the Shreya Singhal judgment and allowed individuals labeled as "anti-India" or "seekers of sedition" to be removed from social media platforms using blocking orders, without following principles of natural justice. This development raises concerns about the potential violation of civil liberties in India, as it opens the possibility for abuse and arbitrary actions against individuals without proper safeguards in place.