Curious case of unconstitutional Twitter blocks

A public representative blocking citizens on twitter is a violation of our fundamental right to speech

 |   Long-form |   11-08-2017
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To people who do not use twitter, it seems like a trifling distraction. Bursts of opinion by idling yappers. While such criticism may bear some truth, twitter like any content agnostic platform provides a range of functions beyond the collective appreciation of cat memes. This includes direct communications with our public representatives and government officials. A cursory glance at a list of the twitter accounts of Indian ministries and functionaries curated by Raheel Khursheed reveals its extensive use by the government.

Beyond their mere presence on twitter, public officials also provide what are termed as e-governance services. These include the publication of public policy and press releases. However, unlike traditional media, twitter is much more than a broadcast medium. It allows a deep level of interactivity between the citizen and the state.

An almost instant, frictionless facility to directly petition government departments and ministries with proposals and complaints. This is recognised in the "Framework and Guidelines for Use of Social Media by Government Departments" issued by the Department of Electronics and Information Technology.

But often our interactions with the government are less than civil. People are seldom satisfied and use every chance to level criticism, ridicule and even forms of harassment. But can Government departments and functionaries block users when it hurts? More importantly, is blocking legal? Personally, this was far from a moot question when following a set of tweets posted below the Hon'ble union minister of state for heavy industries and public Enterprises, Shri Babul Supriyo blocked me on twitter.

After these tweets the Hon'ble Minister blocked my account, viz. prevented me from accessing his tweets (reading them instantaneously), interacting with them (reply, quote, retweet, broadcast) and even checking his account activity (reading the bio, followers etc.) [read more on blocking here].

As I had stated before when UIDAI [Unique Identity Authority of India] blocked users on twitter, I consider twitter blocks by public authorities/functionaries a breach of the constitutional right to receive information. This short piece sets out the reasoning for the proposition.

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The right to receive information

Most people are aware of the constitutional status of the freedom of speech and expression being a fundamental right arises from Article 19(1)(a) of the Constitution. The ambit of this right is subject to Article 19(2) that contains, "reasonable restrictions", such restrictions are within express categories namely, "the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence".

Hence to make any such restriction, it should first be under a legal order. Secondly it requires reasonability, and third, it has to be within the classifications provided under Article 19(2). For further explanation, please refer to the link below.

The position that the right to speech also includes the right to receive information was first observed by Supreme Court of India in the case of State of UP vs Raj Narain (1975) 4 SCC 428 when the court stated, "The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security" [Mathew, J. at 453].

This was then firmly linked to Article 19(1)(a) in the case of SP Gupta vs Union of India (1985) 1 SCC 641 with the judgement noting that, "the concept of an open government is the direct emanation from the right to know which seems to be implicit in the right to free speech and expression guaranteed under Article 19(1)(a). Therefore, disclosure of information in regard to the functioning of Government must be the rule and secrecy an exception…" [Bhagwati, J. at 67 of Supp.].

Several subsequent decisions have cemented the position of the right to receive information as being a constituent of the right to freedom of speech and expression. They stress the impossibility to exercise the freedom to speech without a right to receive information. Both of them together enable a form of citizen-state engagement that deepens democracy.

This is eloquently stated by Justice PB Sawant speaking for the majority in the Secy Ministry of Information and Broadcasting, Govt of India vs Cricket Association of Bengal case (1995) 2 SCC 161. He states:

"True democracy cannot exist unless all citizens have a right to participate in the affairs of the polity of the country. The right to participate in the affairs of the country is meaningless unless the citizens are well informed on all sides of the issues, in respect of which they are called upon to express their views.

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One-sided information, disinformation, misinformation and non-information all equally create an uninformed citizenry which makes democracy a farce when medium of information is monopolised either by a partisan central authority or by private individuals or oligarchic organisations" (at Para 82).

There is a certain antiquity to the cases mentioned above. They are decided before the widespread use of the internet and before the invention of social media platforms. One notices an almost binary categorization between receipt and dissemination of the Article 19(1)(a) right. If a case on blocking may arise, one can quite easily see the court extending them to a third more important layer of the free speech right, termed as the right to interact (or the right to ping).

A right to interact or ping provides a legal basis for a citizen to reasonably convey a message to a public official. This can be the basis of a message of a public official or even suo motu. While such a right would not be a demand for attention, it would be the ability of a user to reach out to their social media profiles and not be blocked by them. It would practically complement the existing right to make and receive speech and deepen participatory democracy.

Even if we disregard the future developments, current precedent prohibits the twitter blocks made by the Hon'ble Minister and the UIDAI. Any block by them or a government entity is illegal as it fails the criteria illustrated below:

1.) Without a basis in law: There has not been any legal order which has been issued for any of the twitter blocks which cites the authorisation of a legislation or an executive order. The amount of labor invested in the exercise of state power to interfere with a constitutional right is immaterial. It is extraneous to determining legality whether the act concerns a click on the mousepad or the knock of a bulldozer.

2.) Is the blocking reasonable: Since there is no published order there is no way to gauge the reasonability of the blocks and they appear prima facia arbitrary. Even if there was an underlying legal provision which could be cited for blocking another persons account, it would be ripe for legal challenge on grounds of reasonableness and proportionality.

Any such provision would be an act of pre-censorship. The only proximate remedy may be injunctory relief through a court order which is sometimes granted in favour of politicians against publications.

3.) Blocking has to be within the grounds of Article 19(2): As stated by Justice RF Nariman in the Shreya Singhal case (2015) 5 SCC 1, speech includes, discussions, advocacy and incitement but, "mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a).

It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in". It's quite clear that none of the tweets come nowhere close to any of the Article 19(2) grounds, not even defamation (for more refer to R Rajagopal v. State of Tamil Nadu (1994) 6 SCC 632).

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It would be unfair to ignore defences that may be cited in favour of blocking. The application of the right to receive information (or the development of a right to interact) can be disputed on the ground that the rights are inapplicable to the personal twitter account of a public functionary. 

This would rely on a delineation between a public official's, official twitter account from their private one. This defence may rest upon the description in the bio, the nature of the tweets etc. To my mind such a defence would be fuzzy at best and is is not readily made out from the facts as they stand.

It is also relevant to note that the Knight First Amendment Institute which has filed suit against Donald Trump for blocking United States citizens on twitter has drawn distinct elements from his twitter profile to reason, "President Trump presents the account to the public as one that he operates in his official capacity rather than his personal one." (click to read the complaint).

In conclusion, I would pose another quote from the judgement in the SP Gupta case as an appeal to the Hon'ble Minister for Heavy Industries and Public Enterprises to respect our constitutional values:

"Today it is common ground that democracy has a more positive content and its orchestration has to continuous and pervasive. This means inter alia that people should not only cast intelligent and rational votes but should also exercise sound judgement on the conduct of the Government and the merits of public policies, so that democracy does not remain merely a sporadic exercise in voting but becomes a continuous process of Government – an attitude and habit of mind. But this important role people can fulfil in a democracy only if it is an open Government where there is full access to information in regard to the functioning of the government." [at Para 65].

(This piece first appeared on the writer's blog.)

Also read: AIADMK merger: Why Tamil Nadu is playing musical chairs

Writer

Apar Gupta Apar Gupta @aparatbar

A litigator practicing in the courts of New Delhi, India

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