The rule which was passed by a ministry in February 2021, came into force on the 26th of May 2021. According to the rule, an amendment had been made to the Information Technology Act. The amendment was made under rule 4(2) of the Information Technology Rule 2021. According to the amendment, the government has made it mandatory for all instant messaging platforms to detect the first originator of any politically hostile message that might lead to sedition.
Opposing the same, Facebook-owned instant messaging company WhatsApp has filed a petition in the Hon’ble Delhi High Court expressing several concerns related to the new imposition. As a company committed to protecting the privacy of its customers, WhatsApp has mentioned in its petition that the new rule makes it impossible to make end-to-end encryption safe and secured for all the citizens who have been using such platforms daily to communicate. The new rule is violative of sections 69(A) and section 79 of the Information Technology Act which is the parent rule. Therefore, the amendment should be declared ultra-vires.
The right to privacy is a fundamental right that is guaranteed to every citizen by the constitution of India. Referring to the famous case of KS Puttuswamy versus. Union of India, the petitioner mentioned that such a traceability rule is violative of articles 19(a), 19(g), right to freedom of speech and expression, article 21: the right to life and liberty, and sections 69(A) and 79 of the Information Technology Act. Therefore, it is arbitrary and should not be made legally mandatory to be abided by. The petitioner has also pleaded that non-compliance with such a rule should not result in criminal prosecution as the rule is explicitly unconstitutional.
Nobody can know which message might lead to the discussion of a topic that is politically charged or has got bigotry and sedition implied in it. As the users become aware of the traceability rule and that it will last forever, they will not feel free to communicate on such platforms. This will make their lives extremely difficult especially under the current pandemic situation where most of the communication takes place online. Also, the fact that the amendment has not been enacted by the Union Parliament but has only been passed by a ministry should not be avoided.
This new rule might make it difficult for a huge section of people to function in not only their personal but also their professional lives. Attorneys and legal practitioners might find it difficult to share confidential information with their clients. Journalists, activists, and politicians might be at risk as their right to freedom of speech and expression will get violated by such arbitrary supervision. The Hon’ble Supreme Court had earlier guaranteed communicational, associational, and informational privacy to all the citizens of the country. The legislature cannot be superseding such a precedent set by the Hon’ble apex court of a country that is the final interpreter of the law of the land. Any provision which makes it difficult for activists to freely discuss their concerns related to the administration of the government and criticize the same can be termed as totalitarian and fascist.
Therefore, the petitioner has requested the court to issue a writ of Mandamus or a direction that makes non-compliance with the new rule, decriminalized.
