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Recently, yet another dispute stirred up between the social media giant Twitter and the Indian Government on account of the Ministry of Electronics and Information Technology (MEIT) issuing a series of blocking orders to the former in relation to multiple twitter accounts and tweets posted on the social media page. As a matter of fact, the micro blogging site has been facing the heat from the Ministry since February 2021 where it has been asked to block almost 1500 accounts and 175 tweets till date. The matter precipitated when the Government finally issued notice dated 27.07.2022 to Twitter warning against punitive measures in the event Twitter does not comply with the blocking orders. Challenging the orders and notice, Twitter, which is a Significant Social Media Intermediary (SSMI) the Information Technologies Act, 2002 (2002 Act), filed a petition before the Karnataka High Court seeking to upend 39 blocking orders issued by the MEIT in June this year under section 69A of the 2002 Act.

As per section 69A, the Central Government has power to direct any agency of the Government or intermediary to block the access by the public of any information generated, transmitted, received, stored or hosted in any computer resource in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to the said grounds. The Government while exercising the said power is required to record reasons in writing.

The essential argument of the Petitioner/Twitter before the Karnataka High Court is that the orders blocking contents are “procedurally and substantially deficient of the provision” and the ones blocking user accounts “demonstrate excessive use of powers and are disproportionate”. Further, the blocking orders fail to provide specifics and do not establish “proximate relationship to the grounds under Section 69A” – as to why the contents of tweets or accounts fall within the heads given under Section 69A of the 2002 Act and rather reiterate the grounds stated in the section. In other words the MEIT has not shown how content disrupts sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order, as contemplated under Section 69A of the 2002 Act.  Twitter has taken the Constitutional ground of violation of freedom of speech guaranteed to the users of the platform to voice their opinion. Twitter, before the Karnataka High Court, has further claimed that the ‘blocking orders’ are arbitrary and illegal for not being in consonance with the procedure set out in the Information Technology (Procedures and Safeguards for Blocking of Access to Information by Public) Rules, 2009 (2009 Rules) and for not being in line with the ‘least intrusive test’ as recognised by the Supreme Court in the case of Justice K.S. Puttaswamy (Retd.) and Another v. Union of India and Others [Writ Petition (Civil) No. 494 of 2012] (famously known as Adhaar case).

Twitter has also cited the affidavit filed by the MEIT in the matter of Sanjay R Hegde v. Ministry of Electronics and Information Technology and Anr [WP(C) 13275 of 2019] before the Delhi High Court. In this matter it was Twitter that had suspended Mr. Hedge’s twitter account. The issue raised in the writ petition against Twitter (averred to be doing a public function) is regarding permanent suspension of the twitter account of petitioner, Mr. Hedge, being contrary to the Twitter Rules and in violation of rights guaranteed under Article 19(1)(a) and (c) of the Constitution of India. Twitter Rules prohibit contents that exhibit –  a. Violence; b. Terrorism/violent extremism; c. Child sexual exploitation; d. Abuse/Harassment; e. Hateful Conduct; f. Suicide or self-harm; g. Sensitive media, including graphic violence and adult content; h. Illegal or certain regulated goods or services; i. Publication of another person’s private information; j. Publication of Non-consensual nudity; k. Platform manipulation and spam; l. Manipulating with election integrity; m. Impersonation; n. Infringement of Copyright and Trademark. As per the petitioner, Mr. Hedge, the re-post of a poem titled ‘Gorakh Pandey’s poem ‘Unko phaansi de do’ and use of picture of August Landmesser as the ‘header’/ ‘cover picture’ of his Twitter profile was not covered in any of the heads prohibited under Twitter Rules. The Writ Petition prayed for issuing appropriate writ to frame guidelines to ensure that online speech is not arbitrarily censored by social media websites and also for restoring the account.

Clearly, the issues involved in the two matters, presently pending before the high courts, are different. While the petition before the Delhi High Court questions the action of blocking by the social media platform – Twitter, the petition before the Karnataka High Court challenges the orders issued by the Government to Twitter directing it to block the accounts of the users.

Further, the issue before the Delhi High Court is whether Twitter is within its rights and authority to block the account of Mr. Hedge (which perhaps still remains blocked)? This would also necessarily require the finding on whether a writ is maintainable against a private entity like Twitter and whether it is performing a public function so as to be covered under the umbrella of Article 226 of the Constitution of India. The issues before Karnataka High Court, on the other hand, is whether the exercise of power of issuing successive blocking orders by the Government to Twitter under section 69A of the 2002 Act is ultra vires or in other words is excessive and arbitrary? Whether this is a violation of Article 14 and 19 of the Constitution of India?

The MIET has exercised its power under section 69A of the 2002 Act which not only gives an authority to exercise power of blocking but also lays down obligation on the Government to state the reasons to be recorded in writing while issuing the blocking to the intermediary. Further, when the Central Government has satisfied itself that the grounds provided under section 69A are met, it can by order direct the intermediary to block ‘any information generated, transmitted, received, stored or hosted in any computer resource’. It does not state that the power extends to blocking or ordering the blocking of the very social media account permanently or even temporarily, essentially taking away from the account user’s right of any future publication (which changes the nature of order to punitive from protective) and also curbs the right of a reader to have access to the previous and future tweets which were not objectionable under section 69A of the 2002 Act. The power given to the Central Government under section 69A(1) is further subject to section 69A(2) which states that the “procedure and safeguards subject to which such blocking for access by the public may be carried out, shall be such as may be prescribed”. The procedure and safeguards have been provided under Information Technology (Procedures and Safeguards for Blocking of Access to Information by Public) Rules, 2009. Therefore, there are two clear riders to the exercise of power under section 69A(1) of the 2002 Act. Firstly, to follow the procedure as given in the 2009 Rules and secondly, while issuing the order, to record reason for its satisfaction in writing. Since the exercise of power by the Government is subject to these conditions, any order issued without following the due process shall not only render it illegal but also ultra vires and in conflict with fundamental rights guaranteed under Part III of the Constitution of India. The analysis and finding of the same is primarily factual (other than to determine the essential nature of power and its objective given under section 69A) and the Court shall certainly go into the fact finding whether the riders were fulfilled by the Government. With regard to the argument regarding the constitutionality of blocking orders and the same being ‘disproportionate’, Twitter has apparently relied on the ‘least intrusive test’ and ‘proportionality standard of review’ or ‘proportionality test’. It is pertinent to make clear at this point that Twitter is not challenging the constitutionality of the provision under section 69A of 2002 Act. The law is settled and the provision has been upheld in the matter of Shreya Singhal v Union of India [Writ Petition (Criminal) No.167 of 2012 decided on 24^th March 2015]. It remains to be seen whether the said tests can be applied in the case of exercise of power by a Government authority under a provision of law that has been held to be constitutional (this not being a case of challenge of the legislative provision itself).