Introduction

The impact of social media in today’s landscape cannot be overstated. While it may have started as a platform for individuals to communicate, social media today has evolved into a primary hub for discourse on all topics across varied spectrums be it social, economic or political. As a natural consequence, social media has become an integral part of the politik and an important source of news for many individuals who are shifting from traditional news outlets¹.

As people’s dependency on social media (particularly as a source of reliable information or news) increased, the spread of misinformation and scams have also increased. In order to regulate this new medium, the Government of India issued the Information Technology Act, 2000, Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules in 2021 to govern the workings of intermediaries, including social media intermediaries. Notwithstanding the exercise of regulatory power under these rules as well as under the Information Technology Act, 2000, there is still scope for misuse and abuse by bad actors. This is primarily due to the sheer volume and influence that social media intermediaries have.

As a result, there has been an ongoing debate as to whether social media intermediaries are amenable to writ jurisdiction. The Delhi High Court (“DHC”) was faced with this issue recently, in Sanchit Gupta v. Union of India & Anr.² (“X Corp Judgment”), when it was called upon to decide whether X, formerly known as Twitter, is amenable to writ jurisdiction.

In this article we discuss against whom a writ petition generally lies, the exception to the rule, the X Corp Judgment and its impact on other intermediaries.

Against whom a writ petition generally lies

In India, writ petitions are filed under Articles 32 and 226 of the Constitution of India (“Constitution”). Under Article 32, a writ can be filed directly before the Supreme Court of India to redress infringement of fundamental rights. Writ petitions of this nature are usually filed against the State, which is defined in Article 12 as including “the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India”.³

Under Article 226, a writ petition may be against “any person or authority”. The Courts have held that “any person or authority” used in Article 226 is not confined only to statutory authorities and instrumentalities of the State but also covers any other person or body performing public function or duty⁴. Therefore, if an entity performs a public function, a writ petition is maintainable under Article 226 of the Constitution.

Public Function

The natural question which arises now is what constitutes “public function”. Given the wide powers of a Writ Court, it is natural for litigants and practitioners to try and fit their case into the box of “public function”. However, Courts have provided a general yardstick as to what constitutes public function. Courts have held that public function can reasonably be said to be such functions which are similar to or closely related to (i) those performable by the State in its sovereign capacity⁵, or (ii) which are normally expected to be performed by the State authorities⁶, or (iii) which seek to achieve some collective benefit for the public or a section of the public and is accepted by the public, or (iv) that section of the public as having authority to do so⁷.

Therefore, “public functions” seem to cover those functions which are traditionally performed by the State, or which are the for public good. This interpretation seems to be based on sound logic – if the scope of the remedy is to be expanded to private entities, it ought to be expanded to cover only those private entities which perform functions similar to the State. Applying this principle, the Courts have held that entities like the Board of Control for Cricket in India [given the nature of duties and functions performed by Board of Control for Cricket in India]⁸, educational institute [imparting education to students]⁹, OLA, which is an app-based aggregator of taxicabs, and its internal complaint committee established under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH”)¹⁰ [Employers and their internal complaint committee under POSH having a public duty and obligation] etc. perform a public function and are amendable to writ jurisdiction.

On the other hand, Courts have also clarified that there must be a public law element to exercise the power under Article 226 against a non-State entity. Such power cannot be exercised to enforce a purely private contract entered into between parties¹¹. Additionally, even if an entity performs a public function, for example an educational institute, the act complained of must have a direct nexus with the discharge of public duty to be amendable to writ jurisdiction¹². This is because individual wrongs or breach of contracts without having any public element as its integral part cannot be rectified through a writ petition under Article 226. Therefore, it is not sufficient that the entity against which the writ is filed performs a public function, the impugned action must also have a public element to it.

The above makes it clear that while Courts have expanded the scope of Article 226, they have been careful and selective in the situation under which a writ petition would lie against a non-State entity.

X Corp Judgment

The petitioner, Sanchit Gupta had filed the writ petition seeking restoration of his X account which he alleged had been suspended without due procedure and against the principles of natural justice. Mr. Gupta had created an account on X Corp and subsequently subscribed to various premium services offered by X Corp. Mr. Gupta also received payments as part of a revenue-sharing arrangement with X Corp. However, Mr. Gupta, after observing a reduction in his account’s reach and stagnated follower growth, raised concerns about the same. Subsequently, X Corp, with no prior show cause notice, intimation or warning, informed Mr. Gupta that his account’s monetization was paused due to suspension of his account. Mr. Gupta filed multiple appeals (within X Corp’s framework) to restore his account, however, none of them were acknowledged or resolved by X Corp. Mr. Gupta filed the writ against this action of X Corp. Mr. Gupta contended that as X Corp performs a public function by facilitating public discourse through its social media platform therefore, it is amenable to writ jurisdiction.

The DHC held that:

• X Corp is a privately owned entity that operates without specific governmental delegation or statutory obligations to perform any public duty.
• While X plays a critical role in information dissemination and influencing public opinion, it is private in operation. There is no directive from the government that delegates traditional state functions to X and is not mandated to carry out public duties.
• X is voluntary and user-driven, unlike entities that operate under a compulsion of law or provide services that are essential public utilities. The Court’s decision appears to basis the fact that X Corp’s services are governed by the Terms of Service which is the contract between X Corp and each user and therefore, in the realm of private law.
• The function or service of providing a platform for communication or social interaction cannot be called be a function similar to that of a governmental function or integral to state functions.

Basis the above reasoning, the DHC dismissed the writ petition and opined that the more appropriate claim would be a claim for breach of contract rather than a public law remedy under Article 226 of the Constitution.

Impact on intermediaries

The X Corp Judgment provides valuable insight into the maintainability of a potential writ against X as well as other social media intermediaries. While none of the prominent social media intermediaries are alike, the DHC’s findings in the X Corp Judgment may still be relevant for social media intermediaries in general. This is because the DHC categorically holds that the function or service of providing a platform for communication or social interaction cannot be called a function similar to that of a governmental function or integral to state functions.

In other words, the threshold for offering a public service such that an entity is amenable to writ jurisdiction is so high that social media intermediaries which only provide a platform for communication are unlikely to meet it. For the same reason, the X Corp Judgment may hold relevance for other types of intermediaries, such as search engines, e-commerce platforms, or cloud service providers. Courts have put strict guardrails against extending the scope of Article 226 to non-State entities thus making it difficult to exercise such powers against intermediaries. Having said that, one cannot rule out the possibility of an intermediary being subject to writ jurisdiction in the future if it can be demonstrated that it provides a public service.

Conclusion

Writ remedies are a way of ensuring that public bodies are held accountable if they indulge in arbitrary action. In order to ensure thoroughness, it follows, therefore, that even private bodies which perform public functions, ought to be held accountable in order to preserve and protect public interest. The X Corp Judgment provides an interesting look at the changing landscape of writ jurisdiction. With intermediaries becoming an intrinsic part of our day-to-day life, it was only a matter of time before intermediaries were assessed on whether they constitute a “public function” or not.

While the X Corp Judgment may have opined on the amenability of social media intermediaries to Article 226, it is unlikely to be the last word on this issue. As jurisprudence around intermediaries continues to evolve, this question may need to be revisited in the future. It will be interesting to see how the law around this develops and whether (if at all) an intermediary is subjected to Article 226 of the Constitution.

Footnotes:

1. https://www.forbes.com/sites/mikevorhaus/2020/06/24/people-increasingly-turn-to-social-media-for-news

2. W.P.(C) 10030/2024

3. In rare instances, writs under Article 32 have been allowed against private persons. See Kaushal Kishore v. State of U.P, (2023) 4 SCC 1, Pr. 81 and 82; Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490, Pr. 6

4. Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691, Pr. 20, Ramesh Ahluwalia v. State of Punjab, (2012) 12 SCC 331, Pr. 12

5. G. Bassi Reddy v. International Crops Research Institute, (2003) 4 SCC 225, Pr. 28

6. Ramesh Ahluwalia v. State of Punjab, (2012) 12 SCC 331, Pr. 12

7. Binny Ltd. v. V. Sadasivan, (2005) 6 SCC 657, Pr. 11

8. Board of Control for Cricket in India v. Cricket Association of Bihar, (2015) 3 SCC 251, Pr., 34 and 35

9. Janet Jeyapaul v. SRM University, (2015) 16 SCC 530, Pr. 30

10. X1 v. Ani Technologies (P) Ltd., 2024 SCC OnLine Kar 102, Pr. 20-27. OLA has filed an appeal against this judgement and the Division Bench of the Karnataka High Court has stayed operation of the judgment by orders dated October 04, 2024 and October 28, 2024.

11. Binny Ltd. v. V. Sadasivan, (2005) 6 SCC 657, Pr. 32

12. St. Mary’s Education Society v. Rajendra Prasad Bhargava, (2023) 4 SCC 498, Pr. 75