In its judgement of June 30, 2023, in X Corp v Union of India, the Karnataka High Court ruled against Twitter in its plea to quash the Government of India’s orders issued under Section 69A of the Information Technology Act and Rules (‘Blocking Orders’), asking it to disable the accounts of certain users. The judgement by Mr. Justice Krishna Dixit expansively interprets powers to block information under the IT Act and could dramatically increase executive leeway for censorship under India’s notoriously opaque and unaccountable system for Blocking Orders.
X Corp. (the successor to Twitter Inc.), which runs Twitter, received orders from the Government of India to block 1,474 user accounts, between February 2021 and February 2022, purportedly relating to the mass protests against recently enacted Farm Bills. Of these, Twitter challenged certain blocking orders before the Review Committee established under the IT Act and Blocking Rules. Aggrieved by the Review Committee’s decision to not revoke the impugned Blocking Orders, Twitter petitioned the Karnataka HC.
Twitter’s contention was that the power to block information under the IT Act is ‘information specific’ or limited to particular actionable instances, as opposed to the wide blocking of entire accounts. Further, Twitter also challenged the procedural proprietary of the Blocking Orders, including the review by the Review Committee. The respondent (Union of India) challenged Twitter’s standing to bring a Writ Petition as a foreign entity, as well as its standing to represent the rights of the blocked users.
The Court framed eight distinct issues for consideration. For brevity, I will focus on the most pertinent analysis.
First, the Court deliberated on the maintainability of the Writ Petition under Article 226 of the Constitution of India. Union of India had claimed that Twitter, as a foreign entity, cannot bring a writ either for violation of fundamental rights, or for statutory rights. Dismissing (partially) the respondent’s arguments, the Court held that it’s writ jurisdiction under Article 226 extended to question of the statutory or legal rights of a foreign entity. Importantly, in this analysis, the court also held that Twitter “…cannot espouse the arguable cause of Twitter account holders in the absence of enabling provision of law”, a point we will return to.
Second, the Court rejected Twitter’s argument that blocking of information under the IT Act is restricted to specific objectionable material, and does not foresee blocking of user accounts, or ‘preventative’ blocking of information. The court applied a rule of purposive interpretation in its reading of ‘information’ under the IT Act, to imply that the intention of the blocking rules is ‘preventative’ as well as curative, and that blocking accounts as opposed to specific tweets serves a deterrent effect that fulfils the intention of the IT Act. Specifically, the Court held that the blocking rules should be interpreted as allowing the government “…to direct blocking of any information which may include an individual post/tweet/message or foreclosing of user accounts in their entirety, both of which are identified through a specific URL (address on the internet). Information may already be in existence or is yet to be generated.”
Third, the Court rejected Twitter’s argument of procedural lapses in issuing of Blocking Orders. Twitter argued that the orders do not communicate the reasons on which they are based. The Court held that the IT Act and Rules do not envisage reasons to be provided in writing, and that reasons can be clearly inferred from the record. The record in this case was produced under ‘sealed cover’, so it is not possible to assess the Court’s stance. However, the Court relied abundantly on framing the impugned tweets and accounts as ‘anti-national’, and spreading ‘fake news’ about the government’s intentions, which bear a ‘strong nexus’ with the statutory grounds.
Fourth, the Court rejected Twitter’s argument that notice to the user (or ‘originator’) of the information was a mandatory aspect of blocking orders under the IT Act, which was not complied with. The Court held both that notice to the affected users was not mandatory under Rule 8(1) of the Blocking Rules, and reiterated that, in any case, Twitter could not make claims on behalf of users whose rights may be affected in this case.
Fifth, the Court rejected Twitter’s argument that the Blocking Orders did not stand the test of proportionality required for restriction of a fundamental right. The Court did not quite go into the elements of a proportionality test, but instead claimed that Twitter, as a foreign entity, did not have the standing to claim violation of its fundamental rights under Article 19. It further held that, in any event, the Court must adhere to the separation of powers and defer to executive authority in light of the wide powers that the IT Act and Rules provide to the government for issuing blocking orders.
Finally, the Court claimed that Twitter had failed to act expeditiously on the impugned Blocking Orders, framed the litigation as ‘speculative’ and ordered exemplary costs of INR 50,00,000 to be paid by Twitter.
The judgement of the Karnataka HC is unsurprising, given the level of deference constitutional courts have showed to the executive branch in matters of censorship in the recent past. However, some aspects of this judgement are particularly noteworthy.
Most importantly, the judgement sets a dangerous precedent and potentially expands the scope of blocking orders issued under the IT Acts in two distinct ways.
First, it brings the regime of Section 69A into an unknown realm of ‘preventative action’ against information yet to be published. This expands the gradually encroaching scope of ‘prior restraint’ in India’s online censorship regime. In a number of cases on internet shutdowns, including Anuradha Bhasin v Union of India, and Vyas v State of Gujarat, preventative censorship through orders under Section 144 have been upheld. However, this is the first case to expand the logic of prior restraint to the information blocking regime under Section 69A.
Second, it expands the scope of ‘information’ which is the subject of blocking orders, from specific messages or content to potentially any information identifiable by a URL. The judgement does not clearly delimit this interpretation of ‘information’, except perhaps that it must be linked to a URL. We have already seen the government rely upon a broad interpretation of ‘information’ under the IT Act to issue blocking orders against Mobile Apps and websites. Instead of clarifying the incredibly vague scope of powers under the IT Act, the Karnataka HC has instead endorsed executive fiat and vagueness. Indeed, it could be argued that ‘information’ under the IT Act, in relation to Blocking Orders implemented by intermediaries should be interpreted restrictively, particularly in light of the definition under Section 2(w), which only envisages intermediaries in respect of specific messages, which is arguably narrower than the definition of ‘information’ under Section 2(v).
Another noteworthy aspect of the judgement concerns the unique nature of intermediaries and the censorship-by-proxy regime. This blog has covered at length how online intermediaries have been co-opted into judicial and legislative regimes for the censorship of online speech, both in copyright and trademark regimes, as well in spheres of security and public order. Enrolling private intermediaries who do not always have commercial incentives to challenge content restrictions has obvious potential for over-censorship and a consequent chilling effect on free expression (as recognised in Indian jurisprudence in Shreya Singhal v Union of India). Indeed, this case represents perhaps the first time a platform has challenged Blocking Orders issued to it before a judicial forum – the collusion of private intermediaries and executive authorities in online censorship continues otherwise unabated. This problem has been frequently noted on this blog in the context of John Doe orders and dynamic injunctions in copyright cases.
In this case, the Karnataka HC repeatedly reiterated that Twitter could not claim to represent the interests of its users, whose free expression was being curtailed. However, this argument fails to consider both the capacities of individual litigants in challenging executive acts, as well as the fact that the IT Act structurally prohibits transparency and clarity on blocking orders (see, for example, Rule 16). Inevitably, it transpires that intermediaries are best placed in both responding to executive action and before the judiciary to raise both procedural lapses as well as broader concerns about free expression. However, in this case, Twitter’s decision to take a stand for users rights has radically backfired, with the Court imposing exemplary costs on the platform, which will surely deter any similar actions from platforms to challenge executive arbitrariness.