Can Centre Withhold Reasons Behind Blocking Orders? What Happens In Other Countries Like USA? Karnataka High Court Asks In Twitter's Challenge

A single judge bench of Justice Krishan S Dixit said “How in other jurisdictions whether disclosure of reason is treated as a matter of force or whether the government can withhold reasons? Whether any element of state sovereignty is involved in this?"

It said “How would the USA have treated an Indian Entity before it? That also needs to be addressed.”

The court sought the clarification after it was informed by Twitter that Union of India failed to furnish any reasons to Twitter along with the impugned blocking orders.

Advocate Manu Kulkarni for Twitter said “Whether application of mind was there to the replies provided by us is not known, as no reasons are recorded in the orders.”

The bench queried with him whether Twitter had asked for the reasons to be supplied to it.

To which he said “There was a hearing provided wherein it was told to me that some of the content we wish you to take down. So far as I am concerned they explain it to me and hear my objection and then an order is issued to me. Thus so far as I am concerned the central government cannot possibly say that at the time of hearing I will disclose the reasons to elucidate your response but at the time of recording the order I will withhold the reasons.”

Further it was said “The expression reasons to be recorded employed in statutes is construed as requiring not only recording of reasons in the file but also communicating it to the aggrieved, who can freely challenge on that basis.”

On the query of the court to the petitioner whether he had solicited reasons for the impugned order from the Union Of India, he admitted that “It was not done in so many words.”

The bench then asked the Union of India why it did not disclose the reason. It said “Why you did not supply the reasons to them, what is that you wish to withhold.”

In response Central Government counsel Kumar M N said “The reasons are mentioned in the notice that was issued to Twitter.”

To which the bench said “Court wants to know what is so much an important thing which prevented the government from disclosing the reasons. When the section (69A) uses the word reasons to be recorded.”

It added “When the whole world is moving towards transparency. If it would have been regarding sovereignty etc we would have understood. You called them for the meeting and you did not agree with the reasons given by them and passed the impugned order, is it not necessary for him to know why you do not agree with his reasons?"

Then the court asked the counsel whether the government was willing to disclose to the court the reasons. Kumar said “Whatever decision is made it can be supplied to the court.”

As regards the contention raised by the Union of India that Twitter being a foreign company cannot avail any remedy of fundamental rights guaranteed under Article 19 (1) and Article 21 of the Constitution of India and the petition filed before the court is not maintainable, Twitter said it "does not seek any enforcement of Right to Freedom of Speech and expression guaranteed under Article 19 (1). But under the very scheme of the 2000 (Information Technology) Act, when there is certain breach it would give cause of action in his favour therefore his client has got locus standi, even independent of Article 14.”

“The Rights guaranteed under Article 14 would be available to foreign entities and foreigners as well,” the rejoinder added.

Further it was said “The Invocation of Article 226/227, (Approaching the High Court for relief) is not confined to violation of Constitutional Rights and they can be extended to violation of other rights also or for any other purposes.”

“If the protocol prescribed under section 69A of (IT Act), is not followed, such a complaint can be brought to the writ court for examination. A civil suit may lie but the efficacy to relief is too low so he has chosen writ court. Although a civil suit could be filed the efficacy of the relief would be too low and therefore his client has chosen the writ.” it was said.

Referring to Apex court judgment in the Shreya Singhal case it was said “The Apex court chose not to strike down the provisions of section 69A, one of the reasons being availability of writ court remedy.”

Twitter Inc has approached the Court questioning and seeking to overturn orders issued by the Government of India through the Ministry of Electronic & IT directing the company to take down content on the social media platform.

The notices and blocking orders sent to the company are under Section 69A of the Information Technology Act. Twitter has been asked by the authorities to act and pull down content including accounts regarding farmers' protest, alleged mismanagement of Covid-19.

Case Title: TWITTER, INC v. UNION OF INDIA

Case No: WP 13710/2022