Twitter Discharges Public Function Of 'High Public Interest', Amenable To Writ Jurisdiction: Sanjay Hegde Tells Delhi High Court

Senior Advocate Sanjay Hegde has told the Delhi High Court that social media giant Twitter discharges a public function of "high public interest" which makes it amenable to the jurisdiction of the High Court.

In the written submissions filed in his petition seeking restoration of his suspended Twitter account, Hegde has further informed the Court that a purely private contract can be enforced by a mandamus if it is found that the body discharges a public function.

A body can be held to be discharging a public function even if its functions are purely voluntary and for a profit motive, Hegde has told the Court.

"It is not necessary that a body discharges functions that are related to or similar to a sovereign function for it to be amenable to writ jurisdiction. As has already been submitted, activities involving a "high public interest" are deemed to be a public function," the written submissions read.

Hegde has further informed the Court that Twitter claims a right to block content and ban users, going even beyond the powers conferred on the executive and the judiciary. Furthermore, it has also been highlighted as to how Twitter, in particular and other intermediaries in general, have taken contradictory stands with regards to their power to censor or block accounts.

"In Aditya Singh Deshwal vs Union Of India & Ors, WP (Crl) 2140/2021 (order dated 28.3.2022), Twitter took the stand that it could not block accounts. A completely contradictory stand has been taken in this case," the submissions state further.

Furthermore, it has also been argued that Twitter is required to follow the principles of natural justice while dealing with it's users. Reliance is placed on Rule 4 (6) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 which requires intermediaries to implement a mechanism to receive grievances and complaints from users.

In addition, Rule 4 (8) requires intermediaries to issue a notice to the user before content generated by him is removed, and to give such user reasonable opportunity to dispute the action being taken by the intermediary.

The written submissions have been filed through Advocate Pranjal Kishore.

The development ensued after Twitter challenged the maintainability of Hegde's petition, claiming that it is not discharging a public function and is not amenable to writ jurisdiction in India under Article 226 of the Constitution.

Hegde has invoked the High Court's writ jurisdiction, saying that (i) Twitter imparts a public function; and (ii) nature of activities undertaken by Twitter is in furtherance of a Fundamental Right under Article 19(1)(a).

The company on the other hand claims that for any activity to be classified as a 'public duty', it is necessary that a positive obligation is cast to discharge that duty.

About the Case

Citing depiction of "hateful imagery", Twitter had blocked Hegde's account in October 2019, for posting the picture of August Landmesser wherein he refused to the Nazi salute at a rally, when everybody around him was doing it; a picture Hegde claims has been up for several months as his cover photo.

Following a massive virtual uproar in his favour, Twitter restored his account the next day, only to block it again, this time for sharing the poem titled "Hang Him". Hedge said that the said post dated back to 2017, where he had retweeted the poem posted by Kavita Krishnan, which dealt with the hanging of two peasant revolutionaries in Independent India.

Hegde had contended that the said posts did not violate any of Twitter's posting norms.

The picture of August Landmesser does not fall under the category of 'hateful imagery' and the Poem is a comment against capitalist system which denies basic rights to the poor, Hegde had said. He added that the cover image was an iconic picture against majoritarianism and was not a Nazi image as the Twitter's profiling system thought.

He had added that he had only quote tweeted the original tweet containing the poem and that non-removal of the original tweet depicted that the Twitter's action in blocking his twitter handle "@sanjayuvacha" was arbitrary and illegal.

Case Title: Sanjay R Hegde v. Ministry of Electronics and Information Technology and Anr