Delhi High Court: A petition was filed by the petitioner seeking a direction to the respondent to produce and publish the order passed by the respondent under Section 69-A of Information Technology Act, 2000 (IT Act) blocking the open-source messaging application of the petitioner called “Briar”. Subramonium Prasad, J., dismissed the petition as the blocking orders have been passed for 14 applications/softwares, including the software/application of the petitioner, as it was being used by the terrorists and their supporters to disturb the security and sovereignty of the country. However, the application of the petitioner has been blocked only in the State of Jammu and Kashmir and the same can be used in all other parts of the country.
The petitioner, a software development company with a registered office in Brighton, United Kingdom sought to set aside the blocking order. ‘Briar’ is a Free and Open-Source Software (FOSS) that allows users to copy, study, and modify the software, with its source code openly shared to encourage improvements. This application is designed to enable communication even without internet connectivity, making it valuable during emergencies, natural calamities, and disasters by facilitating smooth communication for emergency healthcare and disaster management. The application had been particularly useful during the 2017 floods in Tamil Nadu. The Petitioner argued that the blocking order was issued without following the procedures outlined in the Information Technology Act and the Information and Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules, 2009.
Counsel for the petitioner contended that it was not informed about the blocking of ‘Briar’ and that the order was issued without adhering to the procedural safeguards provided in the Blocking Rules. The Petitioner cited Rules 8 and 9, which mandate that a notice should be issued to the concerned person or intermediary before blocking any application/software, allowing them to submit their reply and clarification. The Petitioner claimed that since these procedures were not followed, the blocking order should be revoked, or at the very least, the Petitioner should be made aware of the order to seek legal remedy.
Counsel for the respondent argued that the application was blocked only in Jammu and Kashmir due to national security concerns, as it was suspected to be used by terrorists. The Respondent cited those 14 mobile messaging applications, including ‘Briar’, were blocked under Section 69-A of the IT Act for being prejudicial to the sovereignty, integrity, and security of India. The Respondent also stated that since the Petitioner had no representative in India, they could not be informed about the blocking. Furthermore, Rule 16 of the Blocking Rules mandates strict confidentiality regarding all requests and actions taken, hence the blocking order could not be shared.
The Court, after hearing both parties, emphasized that in matters of national security, principles of natural justice could be set aside. It referred to established legal principles, including observations from Sir William Wade and Supreme Court in Ex-Armymen’s Protection Services (P) Ltd. v. Union of India, (2014) 5 SCC 409, which highlighted that national security considerations could override the right to a fair hearing. The Court noted that the process for blocking a website/application, as per Section 69-A of the IT Act and the Blocking Rules, involves multiple levels of examination and approval, including a Committee consisting of high-ranking officials from various ministries.
The Court observed that the blocking order was issued following a request from the Indian Cyber Crime Coordination Center to block applications used by terrorists in Jammu and Kashmir. The Court acknowledged that decisions taken at the highest levels for national security could be kept confidential and that the interim order had been reviewed by the Committee constituted under Rule 7 of the Blocking Rules. The Court found that the blocking order for ‘Briar’ was part of a broader measure to block 14 applications suspected of being used by terrorists.
The Court concluded that the petitioner’s application was blocked only in Jammu and Kashmir and could still be used in other parts of India. Given the national security concerns and the procedures followed, the Court dismissed the petition, declining to interfere with the blocking order. The petitioner’s request for setting aside the blocking order was not entertained, and the petition, along with pending applications, was dismissed.
[Sublime Software Limited v. UOI, 2024 SCC OnLine Del 4640, decided on 02-07-2024]
Advocates who appeared in this case :
Mr. Bhuvan Mishra, Mr. Arjun Adarian Dsouza, Mr. Yash Maheshwari, Mr. Krishna Kanhaiya Kumar and Mr. Tanmay Mishra, Advocates for petitioner
Mr. Vaibhav Gaggar, SPC with Mr. Utkarsh Tiwari and Ms. Shefali Munde, Advocates. Mr. Vedansh Anand, GP, Advocates for respondents
