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Karnataka HC quashes UP Police’s Sec 41A notice to Twitter India employee, calls it ‘arm twisting’

The court delivered its judgement in the matter of Maheshwari’s petition that he filed after UP Police named him in an FIR over the Ghaziabad assault video case. 

Terming it as an “arm-twisting” technique, the Karnataka High Court has quashed a UP Police notice issued under Sec 41 A that mandated Twitter India employee Manish Maheshwari to appear before it regarding a case. The said notice empowered the police to arrest Maheshwari if deemed that he was uncooperative. Over the last month, the Karnataka High Court was hearing a petition filed by Maheshwari seeking relief from the Uttar Pradesh police which had served two notices to the former over content that was uploaded on Twitter.

Background: The content in question is a viral video of an elderly Muslim man who was attacked in Ghaziabad’s Loni district on June 5. While many took to social media to say that the attack was communal in nature, the Ghaziabad Police claimed that it was not, and it urged Twitter to take down such content. Following that, the Loni Border Police registered an FIR against a few people who uploaded the video and also, against Twitter Inc and Twitter India for allegedly failing to take down the content despite a ‘clarification’ issued by Ghaziabad Police. It is in this regard that the police sent two notices to Twitter India’s Manish Maheshwari, under Section 160 of the CRPC and Section 41 A respectively, urging him to appear in person at the police station for investigation purposes.

The judgement

The order dictated by Justice G Narender said that Sec 41 A cannot be used as “tools of harassment” and maintained that the UP Police did not meet the obligations necessary for them to issue a notice under the same section. Justice Narender added, “It is not in doubt that the very impugned notice itself threatens actions and violation of liberty, which is a fundamental right”.

  • Invocation of Sec 42 notice to Maheshwari (that gives police powers to arrest him if they deem he is not cooperating) was beyond the jurisdiction as Maheshwari does not meet the provisions necessary for the application of the notice. The judge deemed the notice as mala fide
  • The Sec 42 A notice is quashed and is to be treated as Sec 160 CRPC notice, and the order directed UP Police to take Maheshwari’s statements if necessary over video conference.
  • On UP Police: “It is not only the failure to secure information from public authorities (Twitter master data), but also the ominous silence maintained by the police in regards to the merit of the matter. UP Police attempted to coax the court to reject the petition on grounds of jurisdiction.”
  • Justice Narender also observed that Twitter India is an independent entity controlled by Ireland-based Twitter International Company and Twitter Netherlands. He also said that Twitter India has no control over the content on the social media platform. The content, the Court noted, was controlled by Twitter Inc, which is based in the USA.

Why it matters: This decision and the observations made by the Karnataka High Court may have a repercussion on other cases that have been registered against Twitter India and Maheshwari, since the court has stated that Twitter India is an independent entity, and has no control over content on its platform. One of the cases that has been filed against Maheshwari and Twitter India by Madhya Pradesh Police involves an incorrect depiction of the Indian map on the micro-blogging platform.

HC had given interim protection to Maheshwari

Earlier, the Karnataka High Court while granting interim protection to Maheshwari from any coercive action by the UP Police had questioned the police for not affirming the ‘basic facts’ in the Ghaziabad assault video case.

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Justice G Narender took cognisance that Twitter Inc and Twitter India were different entities, and questioned whether the latter was ‘capable of taking down the content’.

UP Police issued notice under Sec 160 CrPC; he (Maheshwari) has responded saying he has no control over the content and pleaded inability. Have you even  ascertained whether Twitter India is capable of controlling the content? — Justice G Narender during a hearing on July 6

What exactly does Sec 41 A entail?

Earlier, while appearing for Maheshwari, senior advocate CV Nagesh had told the bench that Maheshwari was not the managing director as claimed by the Uttar Pradesh Police, and he had no role to play in the circulation of the video. Nagesh had said that Maheshwari was an employee for Twitter India Communications Private Ltd’s Marketing and Sales department, and he was not in a position to travel to Ghaziabad from Bengaluru.

Nagesh’s submissions

  • Maheshwari had responded to the initial notice under Sec 160 that was sent by the Loni Border Police Station on June 17.
  • In his response, he said that although he was in no way responsible for the videos of the Ghaziabad assault on the platform, he would comply with the notice and requested the Loni Border police station to conduct the summons virtually over a video call.
  • UP Police issued the Sec 41A notice in response to Maheshwari’s reply, which Nagesh had objected to in the court.

This is what Sec 41A says —

  • A police officer in the notice can ask someone “against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists” to appear before him/her in relation to a case.
  • The person who has been served the notice cannot be arrested unless the police officer deems that the former should be.
  • If the person fails to comply with the terms of the notice, or willing to identify himself, the police officer may approach a court to issue arrest orders against the person for the offence mentioned in the notice.

FIR is regarding non-compliance with IT Rules: UP Police’s counsel

During the hearings of the court, UP Police’s counsel Prasanna Kumar had argued that the notice was issued to Maheshwari because the latter, in various platforms such as LinkedIn, claimed to be the managing director of Twitter India.

Kumar also brought up the IT rules while seeking to explain why the police served notices to Maheshwari. Although his submission was dismissed by the HC, it was probably for the first time that a representative of a public authority had correlated action sought against Twitter India and Twitter Inc, with the social media company’s non-compliance with the IT Rules 2021.

“The whole FIR is regarding non-compliance with the IT Rules 2021 by Twitter in India. All we want is cooperation from them. The company has a responsibility towards the country,” Prasanna Kumar said. He also assured that “there is no threat to the liberty of petitioner” in response to previous submissions made by Nagesh regarding the applicability of the notice under Section 41 A.

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The Union government has repeatedly said that a significant social media intermediary (SSMI) which does not comply with the rules will lose exemption from liability under the IT Act 2000. Since the deadline for compliance has passed, several cases have been booked against Twitter and Twitter India’s Manish Maheshwari for various alleged offences related to content posted on the platform.

Also Read:

Update, July 23, 7.00 pm: Added details about the background of the court proceedings

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Among other subjects, I cover the increasing usage of emerging technologies, especially for surveillance in India

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