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...
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 of
During 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 14 does not encompass Article19."
On Safe Harbour
Referring to Shreya Singhal, Raghavan submitted that an intermediary has a protection of 'safe harbour' unless there is a court order.
Raghavan said, "If blocking order is issued under 69A and I don't obey then...I loose safe harbour provision. I have no control over censorship over what is posted on platform. Principle is called net neutrality. Im just a platform. But as it cant be unrestricted or unchartered, therefore 79(1) says of course Im giving you safe harbour 'beware if you violate provisions of IT Act safe harbour goes and you will become liable".
He says that Section 79(3) states that if 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.
He said that Section 69A is the repository of power because a blocking order passed under 69A which has to be a reasoned order is also subject to scrutiny; this is why 69A was upheld by the Supreme Court, he emphasized.
Raghavan submitted that "upon receiving knowledge" is interpreted to mean a court order, because there may several posts posted on the platform and the platform cannot sit and check which of the posts are not as per law. Raghavan thereafter emphasized that a notification under Section 79 (3) (b) should be in consonance with safeguards in 69A and that Section 79 (3) (b) cant be a "standalone provision".
He thereafter referred to Shreya Singhal as per which Section S 79(3)(b) is an exemption provision.
Meanwhile the Centre in its counter has with respect to safe harbour enjoyed by intermediaries, stated that the concept of "safe harbour" in the context of internet intermediaries refers to legal provisions that shield these entities-such as internet service providers (ISPs), social media platforms, and content-sharing websites-from liability for unlawful content posted by their users.
The Centre has said, “Safe harbour" is always a conditional protection, available only when due diligence is demonstrably exercised by any intermediary. It is submitted that the same is not a constitutional right, not a part of Article 19(1)(a) and totally a function of local prevailing statute in any country where the intermediary is operating.”
Raghavan thereafter argued whether safeguards under 69A be given go by which has been upheld by Supreme Court adding that Section 79(3)(b) has no such inbuilt protections.
The Court then asked if an intermediary is only governed by 69A and 79 of the IT Act. The counsel stated an intermediary is also governed by The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
Raghavan referred to Rule 3 of the 2021 Rules, which pertains to 'due diligence' to be carried out by an intermediary. He pointed out to Rule 3(1)(d), which provides that an intermediary upon receiving an order by a court or being notified by the Appropriate Government shall not host, store or publish any unlawful information in the interests of sovereignty and integrity of India, security of the State, public order, decency or morality, etc. He remarked “If Rules and S 79 (3) (b) has a ground apart from 69A maybe government can have an argument. Can you add grounds which are not 69A?”
Raghavan also relied on the Bombay High Court judgment in Kumal Kamra vs. UOI, where the 2023 Amendment To IT Rules On 'Fact Check Units' was struck down.
Section 79(3)(b) can be used to empower any officer to issue blocking orders
However Raghavan said that on this basis even a tax recovery officer, station house officer, village accountant can be empowered to issue orders under Section 79(3)(b) and that tomorrow it can be a clerk or a tehsildar as unlike under Section 69A, there is no concept of nodal officer found in Section 79(3)(b).
He said that there is a "notification which empowered a tax recovery officer to issue a blocking order under Section 79(3)(b)".
When Raghav prayed for an interim order, Solicitor General Tushar Mehta stated that the matter may be heard finally. Raghavan then said that Government may not take any further action. To this the Court said that the earlier order will continue and if any action is taken in interregnum the platform can move the court.
With respect to the Sahyog portal, Raghavan submitted that the Centre is compelling the platform to join the portal which is in effect a "censorship portal". To this Mehta said that "any intermediary will be bound by Indian laws...Joining portal is not so grave that you need to have interim protection".
The court while dictating its order said, "Since matter is heard at length, grant of interim order other than what was observed in the order dated 17-3-2025 would not be necessary at this juncture. As the matter is being posted for 24-4-2025 the understanding with consent of parties is that matter will be heard finally."
Granting the petitioner to file its rejoinder the Court listed the matter on April 24.
Case Title: X CORP AND Union of India & Others
Case No: WP 7405/2025
(Compiled by Sanjana Dadmi)