Plea In Kerala High Court Challenges Centre's Order Blocking Open Source Messaging Apps 'Briar', 'Element'

A plea has been filed in the Kerala High Court challenging the blocking of Free and Open Source Software (FOSS) applications— 'Element' and 'Briar', by the Central Government under Section 69A of the Information Technology Act, 2000 (hereinafter, 'IT Act, 2000'). 

As per media reports, on May 1, 2023, Centre blocked fourteen mobile messaging applications under Section 69A of the IT Act on grounds of such applications allegedly being used for communication between 'bad actors' in Jammu and Kashmir, including the two widely used FOSS applications named 'Element' and 'Briar'. 

The Single Judge Bench of Justice Shoba Annamma Eapen today issued notice to Ministry of Information and Broadcasting and the Ministry of Electronics and Information Technology. 

The plea moved by the aggrieved software developers belonging to the FOSS Community of India, avers that that the two FOSS applications that have been banned and which are used by software developers, technologists, innovators and entrepreneurs on a daily basis has several merits to it such as enhancement of interoperability, reduction of costs, vendor independence, development of local growth of the IT Sector, and so on. The petitioners thus aver that the Impugned Order issued by the Central Government is liable to be set aside for placing unreasonable restrictions on the exercise of freedom of speech and expression, as well as for carrying out trade and business, as enshrined in the Indian Constitution. 

The plea states that no opportunity of hearing nor any notice had been provided/issued to the petitioners, before the issuance of the Impugned Order, thereby resulting in gross violation of the Principles of Natural Justice. It has thus been submitted that the procedural safeguards enshrined in the IT (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, had been completely disregarded. 

"The decision of this Court in the present case will have a significant effect on the rights and activities of the developers and users who make up the FOSS movement and would impact the functioning and operations of other commonly-placed platforms using Open Source. An unwarranted outcome of the Impugned Order would be an increasing reliance and dependency on the use of proprietary software by the citizens," the plea further states.

It is on these grounds that the petitioners seek the quashing of the Impugned Order. 

Additionally, the petitioners also pray for the setting aside of Rule 16 of the Blocking Rules, 2009. Rule 16 provides for blanket confidentiality related to any information regarding requests for website blocking and action taken on such requests. The plea avers that the non-publication of the impugned order which finds authority under Rule 16 is against the basic tenets of the rule of law as well as the Principles of Natural Justice. It has further been submitted that the said Rule does not have any nexus with the purposes for which the parent statute, ie, the IT Act, 2000, had been enacted and is ultra vires to that extent. 

The matter has been posted for further consideration on May 29, 2023. 

The Deputy Solicitor General of India S. Manu took notice on behalf of the respondents. Advocates S. Prasanth, Varsha Bhaskar, Anupama Sibi, Ammu Charles, and N. Krishna Ozhakkanat are appearing on behalf of the petitioners in this case. 

Case Title: Praveen Arimbrathodiyil & Anr. v. Union of India & Ors.