X Corp Can't Challenge Indian Laws Regulating Social Media Invoking 'Citizen Centric' Article 19: Karnataka High Court

The Karnataka High Court has ruled that X Crop, formerly Twitter, being a foreign entity cannot challenge Indian laws regulating social media here invoking Article 19 of the Constitution of India.

Justice M Nagaprassana said that a company which is faceless in India, cannot on the basis of “baseless allegations”, come forward and challenge the laws of the nation.

“In the same manner, X Corp being faceless in the nation, operating as an intermediary, cannot challenge any of the statutes of the nation under the umbrage of Article 19. Its presence is not there. It cannot raise a challenge to the statutes regulating social media. If it wants to operate in the nation, it has to abide by the laws, as simple as that,” the Court said.

The judge made the observations while rejecting X Corp's plea seeking a declaration that Section 79(3)(b) of the Information Technology Act does not confer authority on Central government officers to issue information blocking orders, which can only be issued after following the procedure under Section 69A of the Act, read with IT Rules.

In its ruling running into 351 pages, the Court observed that X Corp is not a Company incorporated under any of the Indian laws nor has a face here. It added that X Corp is a “faceless Company”, with not even a legally established office anywhere in India.

“Article 19 of the Constitution undoubtedly gives its protective umbrella only to citizens. Fundamental rights obtaining under Article 19 are citizen centric and not person centric. The petitioner is not even a person, it is a Company. The petitioner being a Company, on the face of it, cannot contend that there is violation of fundamental rights,” the Court said.

Referring to various settled judgments on the issue, the judge said that Articles 14 and 21 of the Constitution would be available to every person as they are not restricted to the citizens of the country only, however, Article 19 is restricted only to citizens of India, adding that in the garb of projecting Articles 14 and 21, a foreigner cannot seek rights under Article 19.

“What the petitioner (X Corp) projects is, that he has a right to challenge all that he has brought before this Court, under the umbrella of Article 14 of the Constitution of India. The challenge is repelled while answering issue No.7. Even otherwise, a foreign company, standing under the umbrella of Article 14, cannot raise a challenge which in effect would lead to interpretation of Article 19, or drawing support even from Article 19 of the Constitution. This is exactly what the petitioner is wanting to seek, project Article 14, take the rights that is unavailable only to citizens under Article 19(1)(a), notwithstanding the rigour of 19(2),” the Court said.

Further, it observed that X Corp's has the status of an intermediary under the IT Act, 2000 and nothing beyond it. It said that the company is neither a citizen of India nor a natural person who can be permitted to sue on the protective umbrella of Article 19.

“It is for the individual citizens of the country, the right under Article 19 are provided. The petitioner, as observed hereinabove, is a mere artificial juristic entity. Therefore, the challenge to a Constitutional validity of a provision or a statute under the Indian law cannot be permitted, particularly under the garb of violation of right guaranteed under Article 19,” it said.

In its plea, X Corp's had 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 had also 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.

X had argued that that compelling social media intermediaries to scrutinise users' content and take down the same if found 'unlawful' under Section 79(3)(b) of the Information Technology Act, goes against the Supreme Court's directions in the case of Shreya Singhal. It was submitted that the Government never urged Section 79 as an empowering section in Shreya Singhal's case, and thus, an exemption provision could not become a source of power.

Meanwhile the Union Government said that illegality or unlawful content cannot attract the same level of Constitutional protections as Free speech. On protection of Safe Harbour to intermediaries the Centre said that Safe harbour is always a conditional protection, available only when due diligence is demonstrably exercised by any intermediary.

Centre further argued that "chilling effect" is not a defence to disseminate content that is 'not in the interest of society' and two, that X cannot claim chilling effect on behalf of its users. It was argued that Sahyog Portal enables an authorised officer of the government to send notice to intermediary regarding any unlawful content and is an administrative procedure in the interest of intermediary.

Also Read: 'Social Media Must Be Regulated': Karnataka High Court Rejects X Corp's Challenge To Centre's 'Sahyog' Portal, Content Blocking Orders

Counsel for X Corp: Senior Advocate KG Raghavan with Advocates Manu P Kulkarni

Counsel for Union of India: SGI Tushar Mehta with Advocates Kanu Agrawal, Gaurang Bhushan and Aman Mehta; ASG K Arvind Kamath and CGSC M N Kumar

Counsel for Intervenors: Senior Advocate Dr. Aditya Sondhi with Advocates Apar Gupta, Malvika Prasad, Spoorthi Cotha, A S Vishwajith and Naibedya Dash

Case Title: X CORP AND Union of India & Others

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