‘No real nexus’: Google challenges Sri Lankan Supreme Court judge’s petition in Karnataka HC

“The Indian Constitution and rights conferred thereunder only apply within the territory of India. Since the petitioner (Nawaz) holds a Constitutional office in Sri Lanka and is a resident of Sri Lanka, and there is no proximity or causal connection between the cause of action pleaded and the Indian territory, the petitioner cannot claim any rights under the Indian Constitution,” it said.

“The Constitution of India is territorial in its scope and operation, and rights under the Indian Constitution are conferred on those who have a nexus to the territory of India. The nexus must be real and substantial,” it added.

Justice Nawaz, in his petition, said that the allegedly defamatory articles, published in 2015 and 2020, had traversed far beyond the shores of Sri Lanka and inflicted grievous damage upon his reputation as a jurist. He said the claims made in the articles are baseless and threaten to erode his global standing, “which he has cultivated over many years of dedication and scholarship”.

Further, the petition stated that the articles in question are “no less than a murder of reputation, an assassination of his character, and is a calculated attempt to deprive him of the dignity he has rightfully earned as a sitting judge of the Supreme Court of Sri Lanka and as a well-renowned academician”.

The petition also stated that, as Justice Nawaz is a Supreme Court judge in Sri Lanka, he is ethically prohibited from filing a lawsuit there, as it would conflict with the well-established legal principle that one cannot be a judge in one’s own cause.

As the alleged defamation against him was perpetrated through online platforms, particularly via Google, and since the company’s Indian headquarters is in Bengaluru, he filed the petition before the Karnataka High Court.

Rights under Article 21 connected to the territory of India

Google has also contended that Article 21, right to life and personal liberty, is intrinsically connected to the territory of India. The petitioner provided no basis to claim rights under the Indian Constitution and the petition is therefore not maintainable, it said.

Stating that Justice Nawaz alleged defamation and violation of privacy arising from the publications made by Sri Lanka-based websites, it said, “Publications made by Respondent Nos. 3 and 4, which are news publishers based outside India and have reported on allegations concerning the petitioner in matters pertaining to affairs having nexus with the territory of Sri Lanka.”

Writ petition in defamation cases

Google argued that a writ petition is the wrong legal vehicle for defamation claims: It noted that even an Indian citizen cannot file a writ for defamation; they must go to a civil court.

Google said that the petition is a civil suit masquerading as a writ petition. Referring to the prayers, it said, “The present petition is a “dressed up writ”, because the petitioner’s grievance is only against private respondents and not ‘state’. As a private US corporation, Google argued that it does not fall within the definition of ‘state’ and, therefore, writ directions cannot be issued against it.

Google warned that if the Karnataka High Court intervenes, it would trigger a “conflict of laws”. The company argued that Sri Lankan law is the most appropriate jurisdiction for this case.

“If courts in other jurisdictions exercise control over content based on accessibility alone, the rights guaranteed to Indian citizens under Article 19(1)(a) could be similarly affected by orders from foreign courts,” Google cautioned.

Right to be forgotten

Google’s response noted that the current legislation governing privacy and data protection is the Digital Personal Data Protection Act, 2023. This law does not acknowledge a ‘right to be forgotten’; instead, it only recognises a limited right to erasure, which applies solely to information that is voluntarily provided.

Google stated, “The petitioner has attempted to assert the Right to be Forgotten as a part or subset of the right to privacy.” Also, Google noted that mere accessibility of the contested content within the Karnataka High Court’s jurisdiction is insufficient to warrant any directives.