'We Have Not Issued Any Direction To Suspend The Account': IT Ministry Tells HC In Sanjay Hegde Vs Twitter Matter [Read Counter And Rejoinder]

The Ministry of Electronics & Information Technology has filed its reply in Senior Advocate Sanjay Hegde's plea challenging suspension of his personal Twitter account in the ongoing tryst of protection of fundamental rights vis-à-vis Freedom of Speech & Expression as enshrined in the Constitution of India.

The Ministry has averred that the suspension of Hegde's twitter account with the handle @sanjayuvacha is the unequivocal decision of Twitter and is not consonant with issuance of any directions by the Ministry.

The Ministry has contended that Rule 3 of the Information Technology (Intermediaries Guidelines) Rules, 2011 specifically lays down guidelines for intermediaries and all intermediaries are required to observe due diligence in discharging their duties for granting access to any user to their resource. In doing so, the Intermediaries are required to publish the following:-

a) Rules & Regulations

b) Terms & Conditions

c) User Agreement

d) Privacy Policy

In light of the above, the Ministry has asserted that the Petitioner had fully understood the terms and conditions of registration of usage before gaining access to Twitter's resource and Twitter had carried out the suspension of Hegde's account for violation of its rules.

It has been categorically averred,

"It is most respectfully submitted that as the Petitioner's account has been suspended by the Respondent No. 2 on the basis of breach of Twitter Rules, the issue prima facie is between the Petitioner & the Respondent no. 1. The Petitioner has fully understood and agreed to the terms and conditions of registration and use of Respondent no. 2's services. The Answering Respondent has not issued/ directed the suspension of petitioner's Twitter account."

Stating that the prima facie issue is directly between Hegde & Twitter, the Ministry has emphasized that Hegde has failed to plead or place any evidence to show that the Ministry has violated any provisions of the IT Act or failed to perform any of its statutory powers.

Rejoining to this stand of the Government, Hegde has disputed all contentions raised by the Ministry in its counter affidavit.

Emphasizing that his posts which insinuated the suspension, the poem "Unko Phaansi De Do" and the picture of August Landmesser were simply symbols of resistance and comments against a capitalist system denying rights to the poor, Hegde has contended that the Ministry must not allow intermediaries to have overbroad censorship and is obligated to frame guidelines to curb the same.

Reiterating the positive obligation of the state to facilitate the exercise of Article 19(1) (a) of the Constitution and effectuating rules/guidelines proscribing over-broad and illegal censorship by an intermediary, Hegde has claimed that the suspension of his twitter account was done in an arbitrary and illegal manner.

"It is submitted that in the absence of any steps taken by the State in exercise of its obligation under Article 19, intermediaries such as the Respondent No.2 take down/remove content in an arbitrary and opaque manner. This has a chilling effect on free speech. Over the last year, many such instances have been reported by the media."

The Petitioner has further contended that the Ministry of Electronic Communication & Information Technology, even in its newly formulated draft rules i.e. the Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018 has proposed guidelines which are antithetical to the Right of Freedom of Speech & Expression and inconsistent with the positive international discourse in this regard.

"It is further submitted that the UN Special Rapporteur has written to the State authorities expressing his concern about the draft 2018 amendment rules, and the negative effect they are likely to have on free speech"

The Delhi High Court's Bench of Justice Naveen Chawla had allowed the plea filed by Hegde on 6th January 2020 after his twitter account had been suspended on 27th October 2019. The petition had sought restoration of his twitter account and framing of guidelines for Twitter in light of the alleged arbitrary and illegal suspension of his account.

Notices were also issued to the Ministry of IT & Electronics and Twitter Communications and the matter had been listed after four weeks. 

Click here to download the Rejoinder

Click here to download the Counter Affidavit