The government filed an affidavit in the Delhi High Court, saying that WhatsApp, being a foreign company, cannot avail of fundamental rights under Articles 19 and 21 of the Constitution, invoke the jurisdiction of the court or challenge the constitutionality of an Indian law.
The Facebook-owned messaging giant had filed a lawsuit in the high court against the Indian government in May, seeking to block the traceability clause of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 that requires social media platforms with more than 5 million users to locate “the first originator of the information”, if required by the local authorities.
The affidavit, filed by the Ministry of Electronics and Information Technology (MeitY) on Thursday and reviewed by Business Standard, said “the constitutionality of a provision of law cannot be challenged by a foreign commercial entity on the ground of it being violative of Article 19”. WhatsApp does not have a place of business in India, it said.
WhatsApp declined to comment as the matter is sub judice. A hearing in the matter was scheduled for Friday but it did not happen as the bench did not assemble.
“This is a technical argument that the court might not agree with,” said Sanjay Hegde, senior advocate at the Supreme Court. “While all fundamental rights are not available to foreigners, especially to a company, it is worth noting that all fundamental rights are also not available to Indian companies. However, I do not see Indian courts taking this argument seriously on the matter of traceability and privacy,” Hegde said.
The government’s affidavit said, “The theory of a representative action is not applicable in the facts of the case; there is no fundamental right to anonymity under Part III of the Constitution.”
Salman Waris, partner at law firm Techlegis, however, said, “The argument that ‘there is no fundamental right to anonymity under Part III of the Constitution’ is very contentious as it is interlinked to the right to privacy, which has been recognised as a fundamental right by the Supreme Court in the Puttaswamy judgment.”
The affidavit contended that the traceability requirement does not need to break end-to-end encryption and is the least intrusive way of identifying the originator of information. WhatsApp’s reluctance to modify its technology for compliance is not sufficient ground to invalidate a law, it added.
WhatsApp has said earlier that it will not break its end-to-end encryption as that would undermine the privacy of users. India is WhatsApp’s largest market with over 400 million users.
Traceability requires messaging services to store information that can be used to ascertain the content of people’s messages, thereby breaking the very guarantees that end-to-end encryption provides.
In order to trace even one message, messaging services would have to trace every message, WhatsApp had said in a blog, explaining why it opposes traceability.
The government’s affidavit said that WhatsApp’s petitions must be dismissed as MeitY does not lack legislative competence to enact the IT Rules.
The apex court, hearing the Prajwala case, had asked the government to identify persons who create or circulate problematic content related to child abuse or rape, and that traceability would help curb fake news.
Waris of Techlegis, however, said, “The ‘legitimate state interest’ argument cannot be used to override or violate fundamental rights. It is the duty of the government to strike a balance between both to protect fundamental rights while implementing a legitimate state interest.”
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