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tl;dr:
The founder of Hindutva Watch, a research initiative that monitors hate speeches, hate crimes and human rights atrocities committed against marginalised communities in India, has challenged the illegal, arbitrary, and disproportionate blocking of their entire X/Twitter account before the Delhi High Court. The petition argues that the blocking action by the Ministry of Electronics and Information Technology (“MeitY”) under the Information Technology Act (“IT Act”) violates principles of natural justice, the Supreme Court's holding in Shreya Singhal v. Union of India (2015) 5 SCC 1, Section 69A of the IT Act read with The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (“2009 Blocking Rules”), and the proportionality test. On April 25, 2024, the Delhi High Court issued notice and directed MeitY's counsel to seek instructions on whether a virtual post-decisional hearing could be provided. The next hearing date is July 26, 2024. IFF has provided legal assistance in this matter.
Why should you care?
Entire account blocking constitutes a prior restraint on freedom of speech and expression online. It not only blocks access to pre-existing content (backwards-looking) but also extends a forward-looking prohibition on all future speech. The backwards-looking exercise is content-specific, while the latter shifts the target of takedown power from content to the user. This is based on the assumption that all future speech acts on the platform will violate Section 69A and be subject to takedown. Such a forward-looking exercise of blocking power would result in a permanent prohibition on certain platform users from participating in the marketplace of ideas. These proceedings are crucial for promoting transparency and accountability in India's online censorship regime. MeitY has historically never made blocking orders public or disclosed them, and creators rarely receive a prior hearing before their content is blocked.
Background
“Hindutva Watch” is a research initiative which monitors, documents, and archives hate speeches and hate crimes committed against marginalised communities in India. Using its X/twitter account, it actively shared news reports and documented hate crimes and human rights atrocities against minority communities. On 16 January 2024, the Hindutva Watch X/twitter account appeared to have been blocked/suspended in the territorial jurisdiction in India. At the time of its blocking, it had over 79,000 followers.
On the same day, Hindutva Watch received an email from X/Twitter, stating that it had received a legal removal demand from the government of India and that its X/Twitter account violated the IT Act, 2000. Hindutva Watch was not provided with prior notice or hearing, nor provided with a copy of the blocking order.
Hindutva Watch Approaches Delhi High Court
With legal assistance from IFF, Mr. Raqib Hameed Naik, founder of Hindutva Watch, filed a writ petition before the Delhi High Court to challenge the blocking of the entire Hindutva Watch X/Twitter account. MeitY is Respondent No. 1 and X Corp. is Respondent No. 2. The petition seeks the following reliefs:
- Call for records pertaining to the blocking of the Hindutva Watch X/Twitter account, as maintained under Rule 15 of the 2009 Blocking Rules, including the order of blocking issued by Respondent No. 1 under Section 69A of the IT Act;
- Call for the orders/findings of the Review Committee constituted under Rule 14 of the 2009 Blocking Rules in respect of its decision qua the blocking of the Hindutva Watch X/Twitter account;
- Direction for setting aside and quashing all orders/directions issued by Respondent No. 1 under Section 69A of the IT Act in respect of the Hindutva Watch X/Twitter account, including the orders blocking the said account;
- Direct Respondent No. 2 to immediately restore access to the Hindutva Watch X/Twitter account.
The blocking of the entire X/Twitter account is challenged on the following grounds:
- First, the blocking of the entire Hindutva Watch’s X/Twitter account exhibits gross procedural impropriety and violates principles of audi alteram partem, open justice, and reasoned orders. This constitutes an egregious breach of natural justice and the right to a fair hearing under Article 21. In Shreya Singhal v. Union of India, the Supreme Court held that both the intermediary and the originator must be heard before blocking content. In the case at hand, the Petitioner i.e., the originator was neither provided prior notice nor a hearing, despite being identifiable, as X/Twitter has the Petitioner's details since he is a registered user and used these details to inform him of his account blocking.
- Second, there is no sanction for a post-decisional hearing offered to the Petitioner, as it is only contemplated in cases of emergency blocking under Rules 8 and 9 of the 2009 Blocking Rules. Further, a post-decisional hearing would be ineffective and violate the principles of natural justice, as the authority may proceed with a “closed mind”, thereby “limiting proper consideration of the representation”. In any event, the post-decisional hearing was not properly offered, as the Petitioner, who was not in India at the time, was not provided with a virtual hearing link.
- Third, the Petitioner was not provided with a copy of the blocking order. Notably, the Supreme Court in Shreya Singhal saved the 2009 Blocking Rules from being struck down on the express ground it required a hearing, and that aggrieved parties may challenge the reasons provided in the blocking order under Article 226 of the Constitution. MeitY has historically cited the confidentiality requirement under Rule 16 of the Blocking Rules to withhold blocking orders from aggrieved persons.
- Fourth, the Petitioner's operation of his X/Twitter account is an exercise of his right to freedom of speech and profession online under Articles 19(1)(a) and 19(1)(g) of the Constitution. The account is an essential online repository of hate crimes, crucial for fostering democratic participation and ensuring government accountability. Its takedown also violates its audience's right to information under Article 19(1)(a) of the Constitution.
- Fifth, blocking of future speech acts is impermissible under Section 69A of the IT Act as it is backward-looking and linked to existing content “any information generated, transmitted, received, stored or hosted in any computer resource”. Blocking an entire account is forward-looking, restricting both existing and future content based on the presumption that future content will be illegal. This amounts to pre-censorship and leads to permanent exclusion from participating in the marketplace of ideas.
- Sixth, blocking of the entire Hindutva Watch X/Twitter account fails to satisfy the third prong of the proportionality test i.e., the rights-restricting measure must be the least restrictive way of achieving the legitimate goal. MeitY must demonstrate that no alternative existed other than prior restraints on the Petitioner's Article 19(1)(a) rights. A less rights-infringing measure would be the targeted takedown of specific tweets, which MeitY has the technical capacity to implement.
Proceedings at the Delhi High Court
The matter was listed as Item 93 before a Bench of Justice Subramonium Prasad of the Delhi High Court on April 25, 2024. Advocate Vrinda Bhandari appeared on behalf of the Petitioner.
Adv. Bhandari pointed out to the court that by order dated 11.05.2022 in Tanul Thakur v. Union of India & Ors. WP (C) 13037/2019, a division bench of the Delhi High Court had directed that the blocking order be made available after redacting portions pertaining to third parties. At this juncture, Justice Prasad asked counsel for Respondent No. 1 whether they were willing to comply. Counsel for the Union of India responded that they could submit the blocking order in a sealed cover. Advocate Bhandari contested the same.
Adv. Bhandari also pointed to the Court that the post-decisional hearing was not provided, as no virtual hearing link was shared with the Petitioner. Justice Prasad directed the counsel for the Union of India to seek instructions on whether a virtual post-decisional hearing could be provided. The next date of hearing is July 26, 2024.
We extend our gratitude to Mr. Raqib Hameed Naik for taking the initiative to approach the Delhi High Court and for allowing us the opportunity to provide him with legal assistance. His challenge plays a pivotal role in the fight to promote transparency in India’s online censorship regime and hold the government accountable for its decisions to ban websites, delete tweets, or remove videos.
We are grateful to Adv. Vrinda Bhandari for leading us in the matter. She was assisted by the IFF legal team, comprising Advocates Gautam Bhatia, Abhinav Sekhri, Radhika Roy, and Gayatri Malhotra; along with Advocates Anandita Rana, Madhav Aggarwal and Pragya Barsaiyan and IFF Fellows Medha Garg and Rubayya Tasneem. We will keep you updated on what happens next!
Important Documents
- Order dated 25.04.2024 (link)