Plea In Kerala HC Against Centre’s Order To Block FOSS Apps

A plea has been filed in the Kerala High Court challenging the blocking of Free and Open Source Software (FOSS) applications, ‘Element’ and ‘Briar’, by the Central Government in accordance with Section 69A of the Information Technology Act, 2000.

According to Section 69A of the IT Act, the Centre blocked fourteen mobile messaging applications on May 1, 2023, including the two popular FOSS applications called “Element” and “Briar,” on the grounds that they were allegedly being used for ‘bad actors’ communication in Jammu and Kashmir.

A single bench of Justice Shoba Annamma Eapen today issued notice to Ministry of Information and Broadcasting and the Ministry of Electronics and Information Technology.

The plea moved by the aggrieved software developers belonging to the FOSS Community of India, avers that that the two FOSS applications that have been banned and which are used by software developers, technologists, innovators and entrepreneurs on a daily basis has several benefits, such as improved interoperability, decreased costs, vendor independence, development of local growth of the IT Sector, and so on.

The petitioners claim that the Impugned Order issued by the Central Government should be revoked because it unreasonably restricts people’s ability to exercise their constitutionally protected rights to free speech and expression and to engage in business.

According to the plea, the petitioners were not given a chance to be heard nor were they given any notice prior to the issuance of the contested order, which constitutes a flagrant violation of the principles of natural justice. It has thus been submitted that the procedural safeguards enshrined in the IT (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, had been completely disregarded.

Additionally, the petitioners also pray for the setting aside of Rule 16 of the Blocking Rules, 2009. In accordance with Rule 16, all information pertaining to requests for website blocking and the actions taken in response to those requests is completely confidential. The argument makes the claim that failing to publish the impugned order, which was granted authority under Rule 16, violates both the principles of natural justice and the foundational principles of the rule of law. It has further been submitted that the said Rule does not have any nexus with the purposes for which the parent statute, ie, the IT Act, 2000, had been enacted and is ultra vires to that extent.

The matter has been scheduled for further consideration on 29^th May, 2023.