New Delhi: Does the Information Technology Act allow the Indian state to block a social media account in its entirety, or should directives be limited to pulling down objectionable posts — micro-blogging platform ‘X’ has raised this important question of law in an affidavit submitted to the Delhi High Court.
The affidavit comes in response to a petition by US-based Raqib Hameed against the Indian government for blocking his ‘X’ account, ‘Hindutva Watch’, in India.
‘X’, in its affidavit, urged the Delhi High Court to lift the ban on Hameed’s account.
Citing Section 69A of the IT Act, which empowers the government to block access to information on computer resources, ‘X’ said the perusal of the IT Act showed that powers to block content are “backwards-looking”. The term implies that the government can block not only the existing content but also all the content that came before it, with its blocking powers extended to entire accounts.
Account blocking, according to ‘X’, prohibits users’ access to not only the existing content but also the “forward-looking” content that the account holder will later post. Any such order presumes that a social media account in its entirety would only host content liable for blocking under Section 69A. That, according to X, is an impermissible and impossible exercise.
The government’s January 2024 order to block Hameed’s ‘Hindutva Watch’ account was an “excessive response” to a few of his posts and suffered from procedural lapses since Hameed did not get a hearing, the ‘X’ affidavit highlighted. ‘X’, through the affidavit submitted to the court in September-end, has supported Hameed, who wants the block on ‘Hindutva Watch’ quashed.
Through its affidavit, ‘X’, for the first time, has come out in support of an individual seeking judicial intervention against a blocking order by the Indian government.
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‘Procedural impropriety’
In an earlier petition filed before the Karnataka High Court, ‘X’ had questioned the validity of the Centre’s content-blocking orders. The orders, it said, were legally invalid because the Centre issued them without hearing the users affected — something that the law mandated. ‘X’, however, lost its case before a single-judge bench of the HC, and its appeal against that verdict is pending before a court of two judges.
The Delhi HC will next hear Hameed’s petition on 3 October.
Hameed’s X account, ‘Hindutva Watch’, describes itself as a research initiative that monitors and archives hate speeches and crimes committed against marginalised communities in India. It had over 79,000 followers when it was blocked.
The handle was made inaccessible in India on 16 January this year. On the same day, the handle’s owner received an email from X, saying the Indian government had put out a notice for blocking the handle because it violated the IT Act, 2000.
According to Hameed’s petition in the HC, ‘Hindutva Watch’ was not provided with a prior notice, or given a hearing or copy of the blocking order. Internet Freedom Foundation is representing Hameed in the HC.
After Hameed sought court directions for the Ministry of Electronics and Information Technology (MeitY) and ‘X’ to produce all official records on the blocking of the account, the HC issued notices to the Centre and ‘X’ in May this year. Through his petition, Hameed demanded the restoration of his account in India in consideration of procedural impropriety.
As per his petition, Hameed received a formal intimation from MeitY for a hearing, but only after his account was blocked. Through the Internet Freedom Foundation, Hameed argued in court that a post-decisional hearing is a course taken in emergency cases, which his matter was not. Besides, it was not a proper offer for a hearing since he was not in India when he received the notice. He also did not get any virtual hearing link.
The blocking order, Hameed said, infringed not just his right to free speech and expression but also the audience’s right to information because the handle is an “essential online repository” of hate crimes, “crucial for fostering democratic participation and ensuring government accountability”.
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‘Disproportionate action’
In its affidavit, ‘X’ has termed the blocking order against ‘Hindutva Watch’ as a disproportionate and unreasonable restriction. Article 19(2) of the Constitution permits the state to curb the fundamental rights of Indian citizens, subject to reasonable restrictions as its provisions outline.
According to ‘X’, the blocking order exceeds the limits prescribed under Article 19(2) and judicial precedents, which advocate for a “less rights-infringing” approach when it comes to limiting the constitutional rights of citizens. It said an equally effective alternative would have been to withhold specific posts that violated the law. Since the blocking order did not indicate how account-level blocking is the only measure available to the authorities, it was, therefore, against the doctrine of proportionality, ‘X’ argued.
The doctrine of proportionality requires that an action must satisfy the legitimate goal it intends to achieve; it must have a rational connection to furthering the goal; must be the only remedy available in the absence of a less restrictive but equally effective alternative and the measure should not have a disproportionate impact on the right-holder.
However, the blocking order did not conform to any one of the requirements of this principle. The ‘Hindutva Watch’ account was blocked based on alleged offending posts, which, X said, did not necessitate a complete block on the account.
It also pointed fingers at the non-compliance with Section 69A of the IT Act. The government can invoke this section to clamp down on intermediaries when they host objectionable content. When the government issues such directions, social media platforms are obligated to pull down unlawful content, which can potentially incite violence or harm the security and integrity of the country, according to ‘X’.
However, the section underlines a procedure before government authority can initiate action. It requires specifying reasons and giving a hearing to the person whose content the authority seeks to remove or block.
‘X’ argued that in the case of ‘Hindutva Watch’, the authority empowered to give blocking instructions did not share any detailed justification with ‘X’ about why it was blocking the account. It also did not provide written reasons to X, whose objections to the non-disclosure of the grounds for the blocking order remained addressed.
X also faulted how the authority communicated the blocking with Hameed. It said Hameed’s email address was available with the authority and, therefore, in terms of principles of natural justice, it should have sent him a notice for a pre-decision hearing.
Even the post-decision notice was flawed, said ‘X’. It was invalid because the authority did not enumerate all specific allegations and grounds upon which it blocked the account. It was “vague and unintelligible” and failed to specify the grounds and reasons based on which the blocking happened in unambiguous terms.
This notice, ‘X’ claimed, merely reproduced the language of Section 69A of the IT Act verbatim without providing any relevant facts and particulars. “It is admitted that such correspondence does not constitute a valid notice in the eyes of the law,” X’s affidavit said, adding that non-disclosure of relevant information to the affected party leaves them remediless because they are unaware of the evidence against them.
Outlining its role, X said it was an intermediary and did not discharge a public function, so Hameed cannot claim any relief against it. X said its requests to MeitY to provide it with the records of proceedings of the review committee, which issued blocking orders against ‘Hindutva Watch’, were turned down.
It accepted Hameed’s contention that the government’s action to block his entire account in India, rather than taking down specific tweets, contradicted Section 69A, which does not permit preemptive blocking of future content.
(Edited by Madhurita Goswami)
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