On Thursday, 7 November, senior advocate Sanjay Hegde sent a legal notice to Twitter Inc over its suspension of his account on the micro-blogging website since 28 October, and its rejection of his appeal against this.
The notice, sent by his lawyer Pranjal Kishore, demanded the restoration of his account and a public apology from Twitter for stigmatising Hegde and causing damage to his reputation, within three days – failing which, he will take legal action, including for defamation.
Hegde had been active on the social media platform since 2010 and had become a well-known, outspoken public figure with over 98,000 followers. HIs account was suspended on 26 October in relation to his ‘cover photo’, an image of August Landmesser standing with his arms crossed in the middle of a crowd of people making the Nazi salute in 1936.
His account was briefly restored but then suspended again over a ‘quote-tweet’ where he shared a post on Gorakh Pandey’s poem ‘Usko Phaansi De Do’.
When Twitter rejected his appeal a couple of days ago, he told The Quint that he was considering legal action.
Interestingly, he has not just sent a legal notice to Twitter Inc, but has also sent a letter (through Kishore) to Law & IT Minister Ravi Shankar Prasad, in which it is argued that social media platforms discharge an “essential public function” in today’s world, as a result of which the fundamental right to freedom of speech and expression under Article 19(1)(a) should be enforceable against such platforms even though they are private entities.
On this basis, the letter has asked the Union Minister to direct Twitter to restore Hegde’s account and issue guidelines to “ensure that any censorship of speech on Social Media (Twitter, Facebook, etc) is carried out strictly in accordance with Article 19 of the Constitution.”
What Are the Legal Grounds For This Notice?
At the outset, the notice points out that Twitter has emerged as one of the largest media of communication in the world and “discharges a critical public function – dissemination of and access to information.”
It also notes that Hegde and other Twitter members use the platform to directly interact with public representatives and government officials – Prasad’s Ministry of Electronics and Information Technology (MEITY) has even issued guidelines for government departments to engage with citizens on social media platforms.
It is then argued that neither of the two tweets by Hegde, which have been cited as the causes of suspension, actually violate Twitter’s rules. The Landmesser photo is a protest against fascism, while the poem he shared (with the phrase ‘Hang Him’, the English translation of its refrain) was a protest against capitalism and the denial of basic rights to the poor.
As a result, the notice argues that it is clear that the suspension of Hegde’s Twitter account is “arbitrary, illegal and contrary to Twitter’s own policies.” The notice to Twitter also references the point made in Hegde’s letter to Prasad, that such a suspension is a violation of his right to freedom of speech and expression, and that the Supreme Court of India has held that private bodies which discharge a public function “are amenable to constitutional scrutiny.”
The letter to Prasad expands on this argument in more detail, relying on observations of the apex court in its 1995 decision in Secretary, Ministry of Information and Broadcasting vs Cricket Association of Bengal.
In this judgment, the Supreme Court had held:
“What is, therefore, required, is an interpretation of Article 19(1)(a) which focuses on the idea that restraining the hand of the Government is quite useless in assuring free speech, if a restraint on access is effectively secured by private groups.”
Twitter had not specifically addressed Hegde’s arguments against his suspension when informing him on 5 November that they would not be restoring his account.
Many of Hegde’s ‘followers’ on Twitter rallied around him on Twitter itself (some even ran a 24-hour boycott of the site and opened accounts on Mastodon). Soon after, reports began to emerge of other people’s accounts being suspended for seemingly innocuous tweets.
The only common thread, it was alleged, was that all these accounts were openly critical of the government, and of the caste system and other conservative constructs. Further criticisms emerged from this regarding Twitter’s lack of rules or policy regarding caste.
On 7 November, Twitter India put out a thread responding to some of these criticisms, in which they said they “are impartial and do not take action based upon any ideology or political viewpoint.”
Hegde and others have claimed that their accounts were suspended after mass reporting of old accounts in a motivated manner – in Hegde’s case, by the Rashtriya Hindu Ekta Dal, which claimed responsibility for this on social media.
The thread also seems to include an oblique reference to Hegde’s suspension for the Landmesser photo:
(This story will be updated with any response from Twitter regarding the notice.)