Shreya Singhal Binding Precedent, Centre Calling SC Judgment Per Incuriam "Unheard Of": X Corp To Karnataka HC In Plea Against Sahyog Portal

Social media platform 'X' (formerly twitter) told the Karnataka High Court on Thursday (April 3) that the Central government's submission that the Supreme Court's 2015 decision in Shreya Singhal vs. UOI is 'per incuriam' and not a binding precedent is something "unheard of". The submission was made before Justice M Nagaprassana who was hearing X Corp's plea seeking a declaration that Section 79(3)(b) IT Act does not confer the authority to issue information blocking orders and such orders can only be issued after following the procedure under Section 69A of the Act read with the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules. The platform has further sought a direction to various ministries of the Union of India from taking coercive or prejudicial action against X in relation to any 'Information Blocking Orders' issued other than those issued in accordance with section 69A of the IT Act, read with the blocking rules.It has further sought protection from any coercive action against the company, its representatives or employees, for not joining the censorship portal 'Sahyog', till the final adjudication of its petition. 'Sahyog' Portal has been developed to automate the process of sending take down notices under Section 79(3)(b) of the Information Technology Act, 2000, to intermediaries by the appropriate government or its agency, to facilitate the removal or disabling of access to any information, data or communication link being used to commit an unlawful act.For government to plead that SC judgment is per incuriam is unheard ofDuring the hearing on Thursday, senior advocate KG Raghavan appearing for X Corp criticized the submission made by Central Government in its counter that Supreme Court's judgment in Shreya Singhal's case is per incuriam and is not a binding precedent. "It is a binding precedent...To come and plead that law is per incuriam is unheard of...To say judgment of Apex Court (shreya singhal) is per incuriam is a submission which I would submit must not be countenanced by this Court," the counsel remarked. With respect to the scheme provided under Section 69A Raghavan said, "What is the law of country? We are saying its codified in (Section) 69A IT Act. Please act as per 69A. According to us Supreme Court in Shreya Singhal has laid down law that 79(3)(b) is only a companion provision of 69A". For context, Section 69 deals with the power of the Central or State government to issue directions for 'blocking' public access to any information. Whereas, Section 79 of the IT Act exempts an intermediary from liability for any information, data or communication link made by a third party. However, Section 79(3)(b) provides that upon receiving actual knowledge or on being notified by the appropriate Government that any information is being used to commit the unlawful act, the intermediary would be liable if it fails to expeditiously remove access to such information.Referring to the provisions and the Centre's counter Raghavan said, "Please see their (Centre) statement of objections...'the law laid down in Shreya Singhal is per incuriam and not a binding precedent'. On the basis of the paragraph both of us are at ad idem that Shreya Singhal waters down 79(3)(b) and upholds 69A... Now they say it is per incuriam. In my submission that plea cannot be raised before this court. We are at ideam that Shreya Shinghal covers the field in my favour. That is why they (Union) take the plea of per incuriam...In Shreya Singhal three provisions were under consideration-66A, 69A and 79(3)(b) (IT Act). Sections 69A upheld, 79(3)(b) watered down and 66A was struck down". He then contended that before blocking orders are issued, procedure prescribed under Section 69A contains inherent safeguards because of which it was upheld by the Supreme Court. As per 69A the Central government has the or any of its officer specially authorised by it in this behalf has the power to issue directions for blocking for public access of any information through any computer resource; however 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.Referring to the case, the counsel highlighted the Supreme Court's observations that blocking could be issued by reasoned order.The counsel further contended that the object of Section 79 IT Act is to deprive an intermediary of protection. He stated “Whole object is not to empower government to do 'x' or 'y' but to deprive me (intermediary) of a protection that is given. It tells us when that protection will vanish. That is the only scope.”On the 'free speech' rights of a company, Raghavan argued that Article 14 of the Constitution encompasses Article 19. He said "One question arises how a company can exercise rights under article 19. Art 19 is one of the factors for purpose of Art 14 even though they are separate articles. It cannot be said that article...

Shreya Singhal Binding Precedent, Centre Calling SC Judgment Per Incuriam "Unheard Of": X Corp To Karnataka HC In Plea Against Sahyog Portal

Malavika Prasad

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