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2021 DIGILAW 992 (BOM)

Sanatan Sanstha v. Union Of India

2021-07-12

M.S.JAWALKAR, M.S.SONAK

body2021
JUDGMENT M.S. Sonak, J. - Heard Mr. Sanjeev Pulalekar learned Counsel for the Petitioner, Mr. Pravin Faldessai, learned Assistant Solicitor General for Respondents No.1 and 2, Mr. Zal Andhyarujina, learned Senior Advocate who appears along with Mr. Raghav Seth for Respondents No.3 and Mr. D. Khambata, learned Senior Advocate with Mr. Vivek Reddy, Ms. Preeti Kolluri, Mr. Ram Kakkar, Advocates for Respondent No.4. 2. The Petitioner, in this case, claims to be a Non-Governmental Organization (NGO), a registered Public Charitable Trust, having its Ashram at Ramanathi, Ponda, Goa. The Petitioner claims to have created Facebook pages on the social media platform, popularly known as 'Facebook' operated by Respondents No.3 and 4. The Petitioner claims that they would use these pages to spread the essence of their spirituality and allied matters. The Petitioner claims that lakhs of persons have visited these Facebook pages of the Petitioner and benefited from the contents posted by them on this platform. 3. The Petitioners have pleaded that after about 10 years, Respondents No.3 and 4, without assigning any reasons and without there being any order from any Government Agencies, blocked the Facebook pages of the Petitioner, thereby disabling the Petitioner from communicating or propagating its philosophy through the Facebook pages and disabling the members of the public from accessing the information which the Petitioner used to post on such Facebook pages. 4. The Petitioner has pleaded that now, if any person tries to access the Facebook pages of the Petitioner, then, the following message appears : "Hi adhyatma, unfortunately your page Sanatan Sanstha English has been unpublished because it violates the Facebook pages terms this means that you can still see the page but other people won't be able to see it and you won't be able to add new people to help you work on your page if you think this is a mistake please let us know, thanks the Facebook team." 5. The Petitioner has pleaded that the action of Respondents No.3 and 4 is highhanded and arbitrary. The Petitioner has pleaded that action on the part of Respondents No.3 and 4, amounts to a violation of the constitutional rights of the Petitioner, which, Respondents No.1 and 2 are duty-bound to protect. The Petitioner has pleaded that the action of Respondents No.3 and 4 is highhanded and arbitrary. The Petitioner has pleaded that action on the part of Respondents No.3 and 4, amounts to a violation of the constitutional rights of the Petitioner, which, Respondents No.1 and 2 are duty-bound to protect. The Petitioner has pleaded that the action on the part of Respondents No.3 and 4, in blocking the Petitioner's Facebook pages, amounts to usurpation of powers which are only vested in Respondents No.1 and 2. 6. The Petitioners have pleaded that during the pendency of the Petition, they received a communication dated 20/10/2020 informing it, that as per the terms of service, which includes 'Community Standards' of Facebook, Respondents No.3 and 4 have a right to permanently disable access to any account that breaches the Community Standards. 7. The Petitioner accordingly amended the Petition to place on record the letter dated 20/10/2020. The Petitioner, by the same amendment, referred to some proceedings before the Hon'ble Delhi High Court in a Civil Suit bearing No.CS (OS) 510 of 2016, instituted by Sasikala Pushpa vs. Facebook and others and finally raised a challenge to the provisions of Section 79 of the Information Technology Act, 2000 as being violative of the fundamental rights enshrined under Articles 14, 19, and 21 of the Constitution. 8. Based upon the aforesaid pleadings, the Petitioner has applied for the following reliefs in this Petition. A. This Hon'ble Court be pleased to issue notice to the Respondents. B. This Hon'ble Court be pleased to pass orders directing the respondent no.1 to 2 to ensure that Resp. no. 3 and 4 are compelled to unblock the facebook pages of the petitioner forthwith and also to allow publication of petitioner's website on facebook. C. This Hon'ble Court be pleased direct Resp. No.1 and 2 to establish government mechanism to regulate the social media platforms such as the Resp. No. 3 and 4. D. This Hon'ble Court be pleased to direct the Respondent no. 1 to 2 to take appropriate penal action against respondent no. 3 and 4 including but not limited to preventing the Resp. No. 3 and 4 to function unless some active, fast and cheap Grievances Redressal Forum is not established by Respondent No. 1 and 2 to effectively address the violations of the fundamental rights of the citizens of India. D-1. 3 and 4 including but not limited to preventing the Resp. No. 3 and 4 to function unless some active, fast and cheap Grievances Redressal Forum is not established by Respondent No. 1 and 2 to effectively address the violations of the fundamental rights of the citizens of India. D-1. In the alternative, this Hon'ble Court be pleased to hold that Section 79 of Information Technology Act is violative of the fundamental rights enshrined under Articles 14,91 and 21 of the Constitution of India. D-2. This Hon'ble Court be pleased to hold and declare that entities exercising "right to edit the material/contents" beyond the blocking rights available to Courts in India and Government of India are not "intermediaries" within the meaning assigned by Information Technology Act. E. Pending hearing and disposal of this petition, this Hon'ble Court be pleased to pass orders directing the Respondent no. 1 to 2 to ensure that Resp. no. 3 and 4 are compelled to reinstate/unblock the Facebook pages of the petitioner. 9. Mr. Punalekar, the learned Counsel for the Petitioner accepted that since Respondents No.3 and 4 may not be the "State" within the meaning assigned to this term under Article 12 of the Constitution of India, the Petitioner will not press for the relief in terms of prayer clauses B, C and D. In any case, we find that prayer clauses C and D, cannot be considered or granted in a vacuum. These are mainly the matters of policy and it is normally not for this Court to direct the Government to establish a mechanism to regulate the social media platform or provide some active, fast and cheap grievances redressal forum, as suggested by the Petitioner. In any case, since these reliefs are not being pressed, we do not go into such issues in this Petition. 10. Mr. Punalekar, however, submitted that there is no justification for grant of any immunity or exemption from liability to Respondents No.3 and 4 who claim to be intermediaries. He submits that Respondents No.3 and 4, by blocking the Facebook pages of the Petitioner, have virtually edited or modified the material/contents that were being earlier posted by the Petitioner on such Facebook pages. He submits that blocking of the Facebook pages amounts to wholesale modification or edition of such material. He submits that Respondents No.3 and 4, by blocking the Facebook pages of the Petitioner, have virtually edited or modified the material/contents that were being earlier posted by the Petitioner on such Facebook pages. He submits that blocking of the Facebook pages amounts to wholesale modification or edition of such material. He submits that in such circumstances, even having regard to the provisions of Section 79 of the Information Technology Act, Respondents No.3 and 4 are neither entitled to the status of intermediaries nor, in any case, can Respondents No.3 and 4, claim exemption from the liability that is provided under Section 79 of the Information Technology Act. He submits that the provisions of Section 79 of the Information Technology Act, to the extent they do not take into account such a position, are ultra vires Articles 14, 19, and 21 of the Constitution of India. 11. Mr. Punalekar submits that the right to edit which, according to Mr. Punalekar, includes the right to block the Facebook pages coupled with the immunity which Respondents No.3 and 4 claim under Section 79 of the Information Technology Act, seriously prejudice the Petitioner's right to equal treatment and the Petitioner's right to freedom of speech and expression. He, therefore, submits that the provisions of Section 79 of the Information Technology Act are ultra vires Articles 14, 19, and 21 of the Constitution of India. 12. Mr. Faldessai, the learned Assistant Solicitor General of India, submits that the constitutional validity of Section 79 of the Information Technology Act has been expressly upheld in Shreya Singhal vs. Union of India, (2015) 5 SCC 1 . He, therefore, submits that there is no merit in the challenge to the provisions of Section 79 of the Information Technology Act. He, therefore, submits that this Petition may be dismissed. 13. Mr. D. Khambata, the learned Senior Advocate appearing on behalf of Respondent No.4 also submitted that the constitutionality of Section 79 of the Information Technology Act has already been upheld by the Hon'ble Supreme Court in the case of Shreya Singhal (supra). He submits that in this case, the Petitioner has not even raised any contention substantially different from the contentions raised in Shreya Singhal (supra). He submits that in this case, the Petitioner has not even raised any contention substantially different from the contentions raised in Shreya Singhal (supra). He submits that in any case, once the constitutionality of a provision has been upheld by the Hon'ble Supreme Court, it is impermissible to reopen such an issue simply by raising or attempting to raise some different contentions to attack the constitutional validity of the same provision. He, therefore, submits that the challenge to the constitutionality of Section 79 of the Information Technology Act is required to be summarily rejected. 14. Mr. Khambata submits that the Petition, as filed, was not at all maintainable because, Respondents No.3 and 4 are neither a 'State' within the meaning of Article 12 of the Constitution, nor are they discharging any public functions. He submitted the issue of blocking the Facebook pages of the Petitioner, is a matter governed by contract and the Petition under Article 226 of the Constitution is not maintainable to address a dispute over a contractual relationship between two private parties. Mr. Khambata submits that it is only to overcome this objection about the maintainability of the Petition, that a challenge was raised to the constitutional validity of Section 79 of the Information Technology Act by amending the Petition. Mr. Khambata relies on Shri Sohan Lal vs. Union of India and ors., (1957) AIR SC 529 , Pradeep Kumar Biswas vs. Indian Institute of Chemical Biology and ors., (2002) 5 SCC 111 and Ramakrishna Mission and anr. vs. Kago Kunya and ors., (2019) 16 SCC 303 in support of his contentions. 15. Mr. Khambata submitted that the Petitioner has no right to seek hosting or transmission of its information or its philosophical views on the platform provided by Facebook. He submits that such a right is neither granted by Section 79 of the Information Technology Act nor for that matter, any other provision of the Information Technology Act. He submits that all these matters are in the realm of contract and if at all the Petitioner has any grievance, the Petitioner will have to seek redressal before any appropriate forum which is empowered to adjudicate the disputes between the two private parties. Mr. Khambata, therefore, submits that this Petition may be dismissed. 16. Mr. Andhyarujina, the learned Senior Advocate appearing for Respondent No.3 adopts the submissions made by Mr. Mr. Khambata, therefore, submits that this Petition may be dismissed. 16. Mr. Andhyarujina, the learned Senior Advocate appearing for Respondent No.3 adopts the submissions made by Mr. Khambata and submits that this Petition may be dismissed. 17. As noted earlier, the Petitioner has not pressed for the reliefs in terms of prayer clauses B, C, and D. Therefore, at least in this Petition, it is not necessary to go into the issue of maintainability even though, prima facie, we thought that the Petition under Article 226 of the Constitution seeking directions to Respondents No.2 and 3 to unblock the Petitioner's Facebook Pages may not be maintainable. This is because there was neither any assertion that Respondents No.3 and 4 answer the definition of 'State' under Article 12 of the Constitution nor were there any serious to establish that these Respondents indeed answer the definition of 'State' under Article 12 of the Constitution, or otherwise, discharge some public functions. At least, prima facie, the dispute regards blocking or unblocking of the Petitioner's Facebook pages, appears to be governed by the contractual relationship between the Petitioner and Respondents No.3 and 4, and normally purely contractual disputes between private parties cannot be adjudicated in proceedings under Article 226 of the Constitution of India. For all these reasons and having regard to the law laid down in Ramakrishna Mission (supra), at least prima facie, we thought that the Petition, as structured and instituted, would not be maintainable against Respondents No.3 and 4. 18. Perhaps, realizing this position, the Petitioner did not press the reliefs in terms of prayer clauses B, C, and D, but only urged that this Court considers grant of reliefs in terms of prayer clauses D-1 and D-2 referred to above. 19. Now, in so far as the relief in terms of prayer clause D-1 is concerned, no relief can be granted in this Petition because a challenge to the constitutional validity of Section 79 of the Information Technology Act has already been turned down by the Hon'ble Apex Court in Shreya Singhal (supra) after reading down the provisions of Section 79 (3)(b) of the Information Technology Act. 20. The relevant observations in this regard, are found in paragraphs 120 to 124.3 and the same are transcribed below for the convenience of reference: " 120. 20. The relevant observations in this regard, are found in paragraphs 120 to 124.3 and the same are transcribed below for the convenience of reference: " 120. One of the petitioners' counsel also assailed Section 79(3)(b) to the extent it makes the intermediary exercise its own judgment upon receiving actual knowledge that any information is being used to commit unlawful acts. Further, the expression "unlawful acts" also goes way beyond the specified subjects delineated in Article 19(2). 121. It must first be appreciated that Section 79 is an exemption provision. Being an exemption provision, it is closely related to provisions which provide for offences including Section 69-A. We have seen how under Section 69-A blocking can take place only by a reasoned order after complying with several procedural safeguards including a hearing to the originator and intermediary. We have also seen how there are only two ways in which a blocking order can be passed-one by the Designated Officer after complying with the 2009 Rules and the other by the Designated Officer when he has to follow an order passed by a competent court. The intermediary applying its own mind to whether information should or should not be blocked is noticeably absent in Section 69-A read with the 2009 Rules 122. Section 79(3)(b) has to be read down to mean that the intermediary upon receiving actual knowledge that a court order has been passed asking it to expeditiously remove or disable access to certain material must then fail to expeditiously remove or disable access to that material. This is for the reason that otherwise it would be very difficult for intermediaries like Google, Facebook, etc. to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not. We have been informed that in other countries worldwide this view has gained acceptance, Argentina being in the forefront. Also, the Court order and/or the notification by the appropriate Government or its agency must strictly conform to the subject-matters laid down in Article 19(2). Unlawful acts beyond what is laid down in Article 19(2) obviously cannot form any part of Section 79. With these two caveats, we refrain from striking down Section 79(3)(b). 123. Also, the Court order and/or the notification by the appropriate Government or its agency must strictly conform to the subject-matters laid down in Article 19(2). Unlawful acts beyond what is laid down in Article 19(2) obviously cannot form any part of Section 79. With these two caveats, we refrain from striking down Section 79(3)(b). 123. The learned Additional Solicitor General informed us that it is a common practice worldwide for intermediaries to have user agreements containing what is stated in Rule 3(2). However, Rule 3(4) needs to be read down in the same manner as Section 79(3(b). The knowledge spoken of in the said sub-rule must only be through the medium of a court order. Subject to this, the Information Technology (Intermediaries Guidelines) Rules, 2011 are valid. 124, In conclusion, we may summarise what has been held by us above: 124.1. Section 66-A of the Information Technology Act, 2000 is struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2). 124.2. Section 69-A and the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 are constitutionally valid. 124.3. Section 79 is valid subject to Section 79(3)(b) being read down to mean that an intermediary upon receiving actual knowledge from a court order or on being notified by the appropriate government or its agency that unlawful acts relatable to Article 19(2) are going to be committed then fails to expeditiously remove or disable access to such material. Similarly, the information Technology "Intermediary Guidelines" Rules, 2011 are valid subject to Rule 3 sub-rule (4) being read down in the same manner as indicated in the judgment." 18. Even, otherwise, there was no clarity in the Petitioner's challenge. It is a settled position of law that once the constitutional validity of a provision has been upheld by the Hon'ble Supreme Court, normally there is no question of the High Court again entertaining a petition questioning the constitutional validity of the very same provision simply because some new ground is being urged or because some old ground is being presented in a different package. There is, accordingly, no case made out for grant of any relief in terms of prayer clause D-1 of this Petition. 19. The relief in terms of prayer clause D-2 of the Petition is also far from clear. There is, accordingly, no case made out for grant of any relief in terms of prayer clause D-1 of this Petition. 19. The relief in terms of prayer clause D-2 of the Petition is also far from clear. In any case, there is no question of grant of any declaratory relief in a vacuum. This is not a case where the Petitioner has instituted some proceedings for breach of contract or otherwise before some competent forum and Respondents No.3 and 4 have claimed or have been granted any immunity based on the provisions of Section 79 of the Information Technology Act or otherwise. Possibly, in such proceedings, some issue can arise as to whether there is compliance with the provisions of Section 79(2) of the Information Technology Act or the applicability of the provisions in Section 79(3) of the Information Technology Act as read down by the Hon'ble Supreme Court in Shreya Singhal (supra). Based on the sketchy and unclear pleadings in this matter, however, there is no case made out for grant of any declaratory relief in this Petition. 20. Even, otherwise, Mr. Punalekar was unable to point out any provision under the Information Technology Act, based on which the Petitioner could insist on maintaining a Facebook page on the platform provided by Respondents No.3 and 4, without agreeing to be bound by the contractual terms that may have been proposed. If, according to the Petitioner, there is some breach of contractual relationship involved in the blocking of the Petitioner's Facebook page by Respondents No.3 and 4, then, it is for Respondents No.3 and 4 to take appropriate steps before the appropriate forum to secure redress. But, a Petition under Article 226 of the Constitution of India may not be an appropriate remedy for this purpose. 21. For all the aforesaid reasons, this Petition is liable to be dismissed and is, hereby, dismissed. There shall be no order as to costs.