1

Santosh
IN THE HIGH COURT OF BOMBAY AT GOA
STAMP NUMBER MAIN NO.1505 OF 2020 -Filing

Sanatan Sanstha
registered Public Charitable Trust
having it's registered office at Sanatan Ashram,
24/B, Ramanathi, Ponda, Goa, 403 401
represented through its Managing trustee
Shri. Virendra Pandurang Marathe,
S/o Pandurang Marathe, Major in age,
Residing at Sanatan Ashram,
Ramnathi, Ponda.Goa. …. Petitioner.

Versus.

1. Union of India, through the Ministry

of Information & Broadcasting,
Shastri Bhavan, “A” Wing,
Dr. Rajendra Prasad Road,
New Delhi, 110001.
Email - secy.inb@nic.in

2. Ministry of Electronics and

Information Technology
(Government of India),
Electronics Niketan, 6,
CGO Complex, Lodhi Road,
New Delhi - 110003
Email - webmaster@meity.gov.in

3. Facebook India Online Services

Private Limited, Unit Nos.1203 and 1204,
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Level 12, Building No.20,

Raheja Mindspace, Cyberabad, Madhapur,
Hitech City Hyderabad,
Hyderabad TG 500081 and One BKC,
Bandra Kurla Complex, Bandra (E),
Mumbai, India 400051,
Email - tvk@fb.com

4. Facebook Inc., having registered

office at 1601, Manlo Park, California,
United States, 94025.

5. Email - CCox@fb.com
MZuckerber@fb.com
zuck@fb.com
records@facebook.com
Also to be served through its advocate -
Adv. Virek Reddy, #202, Lotus Esplendito,
Opp. Vengal Rao Park,
Road No. 1, Banjara Hills, Hydrabad, 500034,
Email - vivekreddy@vrlc.in .... Respondent.

Mr. Sanjiv Punalekar and Mr. Suresh Kulkarni, Advocates for the
Petitioner.

Mr. P. Faldessai, Assistant Solicitor General of India for the Union of

India-Respondent No.1 and 2.

Mr. D. Pangam, Advocate General with Mr. D. Shirodkar, Additional

Government Advocate for the State.

Mr. Zal Andhyarujina, Senior Advocate with Mr. V. P. Singh, Mr.

Raghav Seth, Ms. Neeraja Balakrishnan, and Ms. Shreya Reddy for
Respondent No.3.
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Mr. D. Khambata and Mr. Vivek Reddy, Senior Advocates with Mr. Ram
Kakkar, Mr. Aditya Jalan, and Ms. Preeti Kolluri for Respondent No.4.

Coram: M.S. Sonak &

Smt. M.S. Jawalkar, JJ.

Reserved on : 8 th July 2021

Pronounced on : 12th July 2021.

ORDER : (Per M.S. Sonak, J.)

Heard Mr. Sanjeev Pulalekar learned Counsel for the

Petitioner, Mr. Pravin Faldessai, learned Assistant Solicitor General for
Respondents No.1 and 2, Mr. Zal Andhyarujina, learned Senior
Advocate who appears along with Mr. Raghav Seth for Respondents
No.3 and Mr. D. Khambata, learned Senior Advocate with Mr. Vivek
Reddy, Ms. Preeti Kolluri, Mr. Ram Kakkar, Advocates for Respondent
No.4.

2. The Petitioner, in this case, claims to be a Non-Governmental

Organization (NGO), a registered Public Charitable Trust, having its
Ashram at Ramanathi, Ponda, Goa. The Petitioner claims to have created
Facebook pages on the social media platform, popularly known as
'Facebook' operated by Respondents No.3 and 4. The Petitioner claims
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that they would use these pages to spread the essence of their spirituality
and allied matters. The Petitioner claims that lakhs of persons have visited
these Facebook pages of the Petitioner and benefited from the contents
posted by them on this platform.

3. The Petitioners have pleaded that after about 10 years,

Respondents No.3 and 4, without assigning any reasons and without there
being any order from any Government Agencies, blocked the Facebook
pages of the Petitioner, thereby disabling the Petitioner from
communicating or propagating its philosophy through the Facebook
pages and disabling the members of the public from accessing the
information which the Petitioner used to post on such Facebook pages.

4. The Petitioner has pleaded that now, if any person tries to access
the Facebook pages of the Petitioner, then, the following message
appears :
“Hi adhyatma,
unfortunately your page Sanatan Sanstha English has been
unpublished because it violates the Facebook pages terms this
means that you can still see the page but other people won't be
able to see it and you won't be able to add new people to help
you work on your page if you think this is a mistake please let
us know, thanks
the Facebook team.”
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5. The Petitioner has pleaded that the action of Respondents No.3

and 4 is highhanded and arbitrary. The Petitioner has pleaded that action
on the part of Respondents No.3 and 4, amounts to a violation of the
constitutional rights of the Petitioner, which, Respondents No.1 and 2 are
duty-bound to protect. The Petitioner has pleaded that the action on the
part of Respondents No.3 and 4, in blocking the Petitioner's Facebook
pages, amounts to usurpation of powers which are only vested in
Respondents No.1 and 2.

6. The Petitioners have pleaded that during the pendency of the

Petition, they received a communication dated 20/10/2020 informing it,
that as per the terms of service, which includes 'Community Standards' of
Facebook, Respondents No.3 and 4 have a right to permanently disable
access to any account that breaches the Community Standards.

7. The Petitioner accordingly amended the Petition to place on

record the letter dated 20/10/2020. The Petitioner, by the same
amendment, referred to some proceedings before the Hon'ble Delhi High
Court in a Civil Suit bearing No.CS (OS) 510 of 2016, instituted by
Sasikala Pushpa vs. Facebook and others and finally raised a challenge to
the provisions of Section 79 of the Information Technology Act, 2000 as
being violative of the fundamental rights enshrined under Articles 14, 19,
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and 21 of the Constitution.

8. Based upon the aforesaid pleadings, the Petitioner has applied

for the following reliefs in this Petition.
A. This Hon’ble Court be pleased to issue notice to the
Respondents.

B. This Hon’ble Court be pleased to pass orders directing the

respondent no.1 to 2 to ensure that Resp. no. 3 and 4 are
compelled to unblock the facebook pages of the petitioner
forthwith and also to allow publication of petitioner’s website
on facebook.

C. This Hon’ble Court be pleased direct Resp. No.1 and 2 to

establish government mechanism to regulate the social media
platforms such as the Resp. No. 3 and 4.

D. This Hon’ble Court be pleased to direct the Respondent no.

1 to 2 to take appropriate penal action against respondent no. 3
and 4 including but not limited to preventing the Resp. No. 3
and 4 to function unless some active, fast and cheap Grievances
Redressal Forum is not established by Respondent No. 1 and 2
to effectively address the violations of the fundamental rights of
the citizens of India.

D-1. In the alternative, this Hon’ble Court be pleased to hold

that Section 79 of Information Technology Act is violative of
the fundamental rights enshrined under Articles 14,91 and 21
of the Constitution of India.

D-2. This Hon’ble Court be pleased to hold and declare that

entities exercising “right to edit the material/contents” beyond
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the blocking rights available to Courts in India and

Government of India are not “intermediaries” within the
meaning assigned by Information Technology Act.

E. Pending hearing and disposal of this petition, this Hon’ble

Court be pleased to pass orders directing the Respondent no. 1
to 2 to ensure that Resp. no. 3 and 4 are compelled to
reinstate/unblock the Facebook pages of the petitioner.

9. Mr. Punalekar, the learned Counsel for the Petitioner accepted

that since Respondents No.3 and 4 may not be the “State” within the
meaning assigned to this term under Article 12 of the Constitution of
India, the Petitioner will not press for the relief in terms of prayer clauses
B, C and D. In any case, we find that prayer clauses C and D, cannot be
considered or granted in a vacuum. These are mainly the matters of policy
and it is normally not for this Court to direct the Government to establish
a mechanism to regulate the social media platform or provide some active,
fast and cheap grievances redressal forum, as suggested by the Petitioner.
In any case, since these reliefs are not being pressed, we do not go into
such issues in this Petition.

10. Mr. Punalekar, however, submitted that there is no justification

for grant of any immunity or exemption from liability to Respondents
No.3 and 4 who claim to be intermediaries. He submits that Respondents
No.3 and 4, by blocking the Facebook pages of the Petitioner, have
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virtually edited or modified the material/contents that were being earlier

posted by the Petitioner on such Facebook pages. He submits that
blocking of the Facebook pages amounts to wholesale modification or
edition of such material. He submits that in such circumstances, even
having regard to the provisions of Section 79 of the Information
Technology Act, Respondents No.3 and 4 are neither entitled to the
status of intermediaries nor, in any case, can Respondents No.3 and 4,
claim exemption from the liability that is provided under Section 79 of
the Information Technology Act. He submits that the provisions of
Section 79 of the Information Technology Act, to the extent they do not
take into account such a position, are ultra vires Articles 14, 19, and 21 of
the Constitution of India.

11. Mr. Punalekar submits that the right to edit which, according to
Mr. Punalekar, includes the right to block the Facebook pages coupled
with the immunity which Respondents No.3 and 4 claim under Section
79 of the Information Technology Act, seriously prejudice the Petitioner's
right to equal treatment and the Petitioner's right to freedom of speech
and expression. He, therefore, submits that the provisions of Section 79 of
the Information Technology Act are ultra vires Articles 14, 19, and 21 of
the Constitution of India.

12. Mr. Faldessai, the learned Assistant Solicitor General of India,

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submits that the constitutional validity of Section 79 of the Information

Technology Act has been expressly upheld in Shreya Singhal vs. Union of
India1. He, therefore, submits that there is no merit in the challenge to the
provisions of Section 79 of the Information Technology Act. He,
therefore, submits that this Petition may be dismissed.

13. Mr. D. Khambata, the learned Senior Advocate appearing on

behalf of Respondent No.4 also submitted that the constitutionality of
Section 79 of the Information Technology Act has already been upheld by
the Hon'ble Supreme Court in the case of Shreya Singhal (supra). He
submits that in this case, the Petitioner has not even raised any contention
substantially different from the contentions raised in Shreya Singhal
(supra). He submits that in any case, once the constitutionality of a
provision has been upheld by the Hon'ble Supreme Court, it is
impermissible to reopen such an issue simply by raising or attempting to
raise some different contentions to attack the constitutional validity of the
same provision. He, therefore, submits that the challenge to the
constitutionality of Section 79 of the Information Technology Act is
required to be summarily rejected.

14. Mr. Khambata submits that the Petition, as filed, was not at all

1
(2015) 5 SCC 1
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maintainable because, Respondents No.3 and 4 are neither a 'State' within

the meaning of Article 12 of the Constitution, nor are they discharging
any public functions. He submitted the issue of blocking the Facebook
pages of the Petitioner, is a matter governed by contract and the Petition
under Article 226 of the Constitution is not maintainable to address a
dispute over a contractual relationship between two private parties. Mr.
Khambata submits that it is only to overcome this objection about the
maintainability of the Petition, that a challenge was raised to the
constitutional validity of Section 79 of the Information Technology Act
by amending the Petition. Mr. Khambata relies on Shri Sohan Lal vs.
Union of India and ors.2, Pradeep Kumar Biswas vs. Indian Institute of
Chemical Biology and ors.3 and Ramakrishna Mission and anr. vs. Kago
Kunya and ors.4 in support of his contentions.

15. Mr. Khambata submitted that the Petitioner has no right to seek
hosting or transmission of its information or its philosophical views on the
platform provided by Facebook. He submits that such a right is neither
granted by Section 79 of the Information Technology Act nor for that
matter, any other provision of the Information Technology Act. He
submits that all these matters are in the realm of contract and if at all the
2
AIR 1957 SC 529
3
(2002) 5 SCC 111
4
(2019) 16 SCC 303
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Petitioner has any grievance, the Petitioner will have to seek redressal
before any appropriate forum which is empowered to adjudicate the
disputes between the two private parties. Mr. Khambata, therefore,
submits that this Petition may be dismissed.

16. Mr. Andhyarujina, the learned Senior Advocate appearing for

Respondent No.3 adopts the submissions made by Mr. Khambata and
submits that this Petition may be dismissed.

17. As noted earlier, the Petitioner has not pressed for the reliefs in
terms of prayer clauses B, C, and D. Therefore, at least in this Petition, it
is not necessary to go into the issue of maintainability even though, prima
facie, we thought that the Petition under Article 226 of the Constitution
seeking directions to Respondents No.2 and 3 to unblock the Petitioner's
Facebook Pages may not be maintainable. This is because there was
neither any assertion that Respondents No.3 and 4 answer the definition
of 'State' under Article 12 of the Constitution nor were there any serious
to establish that these Respondents indeed answer the definition of 'State'
under Article 12 of the Constitution, or otherwise, discharge some public
functions. At least, prima facie, the dispute regards blocking or
unblocking of the Petitioner's Facebook pages, appears to be governed by
the contractual relationship between the Petitioner and Respondents No.3
and 4, and normally purely contractual disputes between private parties
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cannot be adjudicated in proceedings under Article 226 of the

Constitution of India. For all these reasons and having regard to the law
laid down in Ramakrishna Mission (supra), at least prima facie, we
thought that the Petition, as structured and instituted, would not be
maintainable against Respondents No.3 and 4.

18. Perhaps, realizing this position, the Petitioner did not press the
reliefs in terms of prayer clauses B, C, and D, but only urged that this
Court considers grant of reliefs in terms of prayer clauses D-1 and D-2
referred to above.

19. Now, in so far as the relief in terms of prayer clause D-1 is

concerned, no relief can be granted in this Petition because a challenge to
the constitutional validity of Section 79 of the Information Technology
Act has already been turned down by the Hon'ble Apex Court in Shreya
Singhal (supra) after reading down the provisions of Section 79 (3)(b) of
the Information Technology Act.

20. The relevant observations in this regard, are found in paragraphs

120 to 124.3 and the same are transcribed below for the convenience of
reference:
“ 120. One of the petitioners’ counsel also assailed Section
79(3)(b) to the extent it makes the intermediary exercise its own
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judgment upon receiving actual knowledge that any

information is being used to commit unlawful acts. Further, the
expression “unlawful acts” also goes way beyond the specified
subjects delineated in Article 19(2).
121. It must first be appreciated that Section 79 is an
exemption provision. Being an exemption provision, it is closely
related to provisions which provide for offences including
Section 69-A. We have seen how under Section 69-A blocking
can take place only by a reasoned order after complying with
several procedural safeguards including a hearing to the
originator and intermediary. We have also seen how there are
only two ways in which a blocking order can be passed—one by
the Designated Officer after complying with the 2009 Rules
and the other by the Designated Officer when he has to follow
an order passed by a competent court. The intermediary
applying its own mind to whether information should or should
not be blocked is noticeably absent in Section 69-A read with
the 2009 Rules

122. Section 79(3)(b) has to be read down to mean that the

intermediary upon receiving actual knowledge that a court order
has been passed asking it to expeditiously remove or disable
access to certain material must then fail to expeditiously remove
or disable access to that material. This is for the reason that
otherwise it would be very difficult for intermediaries like
Google, Facebook, etc. to act when millions of requests are
made and the intermediary is then to judge as to which of such
requests are legitimate and which are not. We have been
informed that in other countries worldwide this view has gained
acceptance, Argentina being in the forefront. Also, the Court
order and/or the notification by the appropriate Government or
its agency must strictly conform to the subject-matters laid
down in Article 19(2). Unlawful acts beyond what is laid down
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in Article 19(2) obviously cannot form any part of Section 79.

With these two caveats, we refrain from striking down Section
79(3)(b).
123. The learned Additional Solicitor General informed us
that it is a common practice worldwide for intermediaries to
have user agreements containing what is stated in Rule 3(2).
However, Rule 3(4) needs to be read down in the same manner
as Section 79(3(b). The knowledge spoken of in the said sub-
rule must only be through the medium of a court order. Subject
to this, the Information Technology (Intermediaries Guidelines)
Rules, 2011 are valid.

124, In conclusion, we may summarise what has been held by

us above:

124.1. Section 66-A of the Information Technology Act, 2000

is struck down in its entirety being violative of Article 19(1)(a)
and not saved under Article 19(2).

124.2. Section 69-A and the Information Technology

(Procedure and Safeguards for Blocking for Access of
Information by Public) Rules, 2009 are constitutionally valid.

124.3. Section 79 is valid subject to Section 79(3)(b) being read

down to mean that an intermediary upon receiving actual
knowledge from a court order or on being notified by the
appropriate government or its agency that unlawful acts
relatable to Article 19(2) are going to be committed then fails to
expeditiously remove or disable access to such material.
Similarly, the information Technology “Intermediary
Guidelines” Rules, 2011 are valid subject to Rule 3 sub-rule (4)
being read down in the same manner as indicated in the
judgment.”
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18. Even, otherwise, there was no clarity in the Petitioner's

challenge. It is a settled position of law that once the constitutional
validity of a provision has been upheld by the Hon'ble Supreme Court,
normally there is no question of the High Court again entertaining a
petition questioning the constitutional validity of the very same provision
simply because some new ground is being urged or because some old
ground is being presented in a different package. There is, accordingly, no
case made out for grant of any relief in terms of prayer clause D-1 of this
Petition.

19. The relief in terms of prayer clause D-2 of the Petition is also far
from clear. In any case, there is no question of grant of any declaratory
relief in a vacuum. This is not a case where the Petitioner has instituted
some proceedings for breach of contract or otherwise before some
competent forum and Respondents No.3 and 4 have claimed or have been
granted any immunity based on the provisions of Section 79 of the
Information Technology Act or otherwise. Possibly, in such proceedings,
some issue can arise as to whether there is compliance with the provisions
of Section 79(2) of the Information Technology Act or the applicability of
the provisions in Section 79(3) of the Information Technology Act as read
down by the Hon'ble Supreme Court in Shreya Singhal (supra). Based on
the sketchy and unclear pleadings in this matter, however, there is no case
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made out for grant of any declaratory relief in this Petition.

20. Even, otherwise, Mr. Punalekar was unable to point out any
provision under the Information Technology Act, based on which the
Petitioner could insist on maintaining a Facebook page on the platform
provided by Respondents No.3 and 4, without agreeing to be bound by
the contractual terms that may have been proposed. If, according to the
Petitioner, there is some breach of contractual relationship involved in the
blocking of the Petitioner's Facebook page by Respondents No.3 and 4,
then, it is for Respondents No.3 and 4 to take appropriate steps before the
appropriate forum to secure redress. But, a Petition under Article 226 of
the Constitution of India may not be an appropriate remedy for this
purpose.

21. For all the aforesaid reasons, this Petition is liable to be

dismissed and is, hereby, dismissed. There shall be no order as to costs.

Smt. M.S. Jawalkar, J. M.S. Sonak, J.