The Delhi High Court on Wednesday dismissed a PIL that sought legal action against Twitter and its employees in India for abetting the Khalistan movement by deriving financial benefit from promoting their tweets. The division bench of Justices Hima Kohli and Subramonium Prasad refused to interfere since the petitioner had not made a representation before the central government. Bar and Bench had first reported about this issue.

Despite its disposal, the petition is one of the many PILs filed against Twitter in Indian high courts over the last few months (more on that below).

The criminal writ petition, which had been filed by a Delhi-resident Sangeeta Sharma, argued that Twitter has derived financial benefit from ads and promoted tweets sponsored by the supporters of the separatist Khalistan movement. The petition alleged that Twitter’s servers were used to promote the creation of Khalistan. Calling it a “brazen attack on sovereignty and integrity in India on twitter platform”, she alleged that was “to the detriment to the citizens as a whole”. Sharma also alleged that Twitter did not remove content from pro-Khalistan users.

Why did the court dismiss the petition?

Since the petitioner had not raised these issues with Twitter or any of the other respondents — Central government, Ministry of Home Affairs (MHA), Ministry of Electronics and Information Technology (MEITY), Ministry of Law and Justice, and the National Investigation Agency (NIA) —, the bench refused to hear it on merits.

The central government’s lawyer, Additional Solicitor General Chetan Sharma, agreed with the court’s assessment. Sharma also reportedly agreed with the bench’s observation and said that the process for formulation of rules and regulation to govern social media is already underway, probably with reference to the Intermediary Guidelines. He also cited the Shreya Singhal judgement as per LiveLaw.

The bench also said that the petitioner’s arguments are mostly premised on publicly available information and BJP Lok Sabha MP Anant Kumar Hegde’s letter to the PMO.

Hegde had written to the PMO regarding Twitter’s “anti-national acts” and his proposal to develop an Indian version of the platform with the help of NIC, C-DAC or CDOT to save the country form “digital colonization”. In that letter, he had also accused Twitter of curbing free speech by targeting “nationalistic accounts”. He had alleged that nationalistic Twitter accounts and pro-Indian handles were selectively targeted and handles that “spewed poison” about the prime minister and chief ministers were promoted via paid ads. He had also mentioned the Khalistan issue.

As a result, the bench allowed the petitioner’s lawyer, Desh Ratan Nigam, to withdraw the petition. Nigam told us that Sharma had not yet decided whether she would approach the authorities independently.

‘No effective action against pro-Khalistan users’: Petitioner’s allegations

  • Blocking content locally is useless since the Khalistan movement is funded by Sikh diaspora: Sharma has accused Twitter of not taking any serious action against pro-Khalistan users on the platform. She said that the platform withheld content from certain users within India — what the company calls “country withheld content” — to show that it had “done something” but the reasons for blocking them were not declared. “Country withheld content” means that Twitter does not globally take down the content; it just blocks access to it in the particular country where the content may be illegal. Only content that is violative of Twitter’s own guidelines is taken down globally. Sharma pointed out that since the Khalistan movement is being spread across the UK, the US and Canada, “mere withholding access to certain content in a particular country from time to time and therefore, such withholding will be limited to the specific jurisdiction, does not solve the problem”.

The Khalistan movement, that gained critical mass in the 1980s, aims to create a separate, sovereign state for Sikhs out of Punjab (India). As per multiple reports over the years, the secessionist groups are funded by Sikh diaspora in countries such as Canada, the UK, the US and other Western European nations. In July 2019, the Indian government had banned Sikhs for Justice under UAPA and despite reportedly comprising of only 8-10 people, it has online support from more than 200,000 people. In July 2020, MEITY had blocked 40 websites linked to SFJ under Section 69A. In 2015, a US judge had ruled that blocking access to SFJ’s Facebook page in India is not discriminatory.

  • Twitter is abetting terrorism: By virtue of not taking action against pro-Khalistan content, Sharma has accused Twitter of abetting terrorism in India under Section 107 of the IPC, Sections 153A, 153B, 121A, 124A of the IPC, Section 66F of the Information Technology Act, Section 39 of the Unlawful Activities (Prevention) Act (UAPA).
  • Accounts of founders of designated terrorist organisations not taken down: The petition contends that Twitter has not taken down the account of Gurpatwant Singh Pannun, the founder of the banned separatist organisation Sikhs for Justice which was founded in 2007. When we visited the handle (@_Pannun_SFJ05_), we found that the account had been suspended. A spokesperson for Twitter refused to comment on the individual account citing “privacy and security reasons”.
  • No law to penalise social media platforms for hate speech: As per the petition, there is no law or mechanism that prevents social media platforms from spreading “separatist agenda, seditious material, hatred amongst communities, instigative, divisive against the society at large, threat to national security and against the spirit of the Union of India”. It blamed the MHA, MEITY, Ministry of Law and Justice and the National Investigation Agency (NIA) for “not having any rule, circular, notification, mechanism” that can prohibit Twitter from publishing and spreading content that is separatist in nature and challenges the “unity, integrity and sovereignty of Union of India”. It accused Twitter of abetting separatists as it “accepted financial gratification and paid advertisements”.
  • Lack of grievance officer: The petition argues that the lack of a local grievance officer in a market that has nearly 35 million active users shows that Twitter is “not interested” in resolving issues at ground level. As per the petition, the grievance officer for Indian users, Jeremy Kessel, is located in Ireland. However, as per Twitter’s help page, he is located in California.

KYC for social media?
In a bit of whammy, the petition had also mentioned that the KYC of all social media handles in India must be conducted to make “social media safe and accountable and traceable”. It is also interesting that the case was heard by a division bench constituting Justice Prasad, who, during his tenure at Madras High Court, had been part of a division bench that had categorically rejected any linkage of social media handles with at least Aadhaar.

What did the petitioner want?

Despite the somewhat specific nature of her petition against Twitter, Sharma wanted the court to issue a number of orders:

  • An investigation by NIA since the “Khalistan movement is supported by many Sikhs who are the resident of India”.
  • Court orders to central government to check content, ads: She wanted the court to direct the Home Ministry, IT Ministry, and Law Ministry to create a mechanism to check “contents and advertisements which are spreading hatred amongst the communities, seditious, instigative, separatist, hate filled, divisive, against the society at large and against the spirit of Union of India”.
  • Criminal cases against Twitter India, its employees: The petition also accused Twitter of being “not neutral and unbiased” and cited an unnamed news website where Twitter CEO Jack Dorsey said that its employees are left-leaning. The petitioner alleged Twitter India of being “unabashedly and unequivocally against the present Govt” of India and went on to accuse few Twitter employees in particular, including Mahima Kaul, the director of policy in India, and Raheel Khursheed, who headed the news division at Twitter India, South East Asia for more than four years. Sharma wanted criminal cases to be registered against Twitter India, Kaul and Khursheed. Khursheed left the company in July 2018 and relocated to Boston as per his LinkedIn profile. A Twitter spokesperson too confirmed to MediaNama that he is no longer employed at the company.
  • Develop Indian social media with local servers: She wanted the Indian government to ensure the development of Indian social media platforms, and have their servers based in India.
  • Tax Twitter in India over revenues generated in India: This is something the Indian government is already looking into, and the equalisation levies imposed in 2016 and 2020 are supposed to provide for that.
  • Make Twitter share its source code with the Indian government: She wanted the court to direct the central government to ensure that Twitter shares its source code with the Indian government.

Case is a part of a larger andolan against Twitter

This case is a part of a larger exercise to file FIRs and PILs against Twitter en masse. BJP’s Vinit Goenka, since May 31, has been hosting weekly virtual conferences highlighting Twitter’s alleged “anti-India” activities. The primary issue Goenka has with Twitter is that they take “blood money” to promote anti-India content from organisations that have been banned or declared as terrorist organisations by the government of India. Goenka has himself petitioned the Supreme Court seeking directions for the government to create a mechanism to check content and advertisements on Twitter.

“Why should they collect money from anybody who propagates violence?” he said in a conversation with MediaNama. “They are not platforms, they are publication house because they mediate. They choose to block, ban handles; they choose to block, ban or amplify content; and they choose to take advertisements of such content, and they choose not to apply local laws,” he said.

Multiple petitions have been filed

Inspired by him, multiple people have claimed that they have filed PILs and FIRs against Twitter India and its employees. We have seen copies of three such complaints filed in Gauhati High Court and Bombay High Court, where the language of the petitions is practically identical. We had reported on the modus operandi that the group has adopted earlier.

In the last virtual meeting hosted by Goenka on September 27, the petitioner’s lawyer — Desh Ratan Nigam — spoke at length, including about this particular petition.

In a conversation with MediaNama about this modus operandi, Nigam said, “I also heard about them and the issue seems to be similar. And every high court, … in my opinion, has an independent cause of action. And Twitter will then have remedy if they want to contest it in every high court or if they want to go the Supreme Court [to] get all the matters listed in one place.”

In his address on Goenka’s call, Nigam had said that it is clear that Twitter is abetting anti-India content since specific tweets have been promoted. The question is of establishing conspiracy which is where an in-depth investigation is required, he said.

“I think the issue is that Khalistan is just an example. There is so much of that going on that. These are promoted handles, then the issue arises. Especially when the Delhi High Court’s Chief Justice has already declared that association [Sikhs for Justice] unlawful. And once it is declared unlawful and subsequently the same handles change their names and twitter is aware of it and the same agenda is still going on. That is where the complicity of Twitter arises. Otherwise the moment you come to know, you bring them down and you ban them permanently. That is where Twitter is not coming out clean,” he told us.

In his conversation with us, he cited two recent cases — the Prashant Bhushan contempt petition in the Supreme Court and the ongoing case against Sudarshan News. In the Bhushan case, he said that Twitter India simultaneously said that it has no control over its servers and thus cannot do anything about it, but to “prove their bona fides”, it had suspended some accounts. “But those two things cannot go together. If Twitter India doesn’t have any control over the servers, how can it block or suspend them?” Nigam said.

Interestingly, on the videos of a number of these meetings, a Facebook user named “Sangeeta Sharma” has left comments praising the initiative. Here are a few samples: “Wake Bharat waio before it too late, and they break Bharat [sic]”, “Fight against antinational policies of Twitter will Continue [sic]”.

Goenka did not know if this user is the same as the petitioner. We have reached out to the Facebook user and to Nigam for more information, however, Nigam had earlier told us that the petitioner does not want to talk to media, and that he doesn’t know if Sharma has spoken to Geonka.

Read more: BJP’s Vinit Goenka calls for mass filing of cases against Twitter on charges of sedition against its public policy execs