Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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Background

  • Recently issued new guidelines by the Ministry of Electronics and Information Technology (Intermediary Guidelines and Digital Media Ethics Code) directed WhatsApp and other messaging platforms to enable the traceability of a message to its original sender in case the message undermines the sovereignty and the security of the nation.
  • Challenging Rule 4(2) of the MEITy rules, WhatsApp has recently filed a suit against the Government of India in the Delhi High Court.
  • WhatsApp contended that this requirement will compel it to design the facility to identify the first originator for every message sent in India on its platform upon request by the government endlessly.
  • It also contended that this violates Article 14 and the Right to Freedom of Speech and Expression, and Section 69 A and 79 of the Information Technology Act. It also submitted that it doesn’t pass the tests enshrined under Article 21 of the Indian Constitution.

What is the plea filed by WhatsApp

  • The plea filed by WhatsApp holds that “The requirement that intermediaries like the Petitioner enable the identification of the first originator of information in India on their platforms put end-to-end encryption and its benefits at risk. There is no way to predict which message will be the subject of such a tracing order. Therefore, Petitioner would be forced to build the ability to identify the first originator for every message sent in India on its platform upon request by the government forever. This breaks end-to-end encryption and the privacy principles underlying it, and impermissibly infringes upon users fundamental rights to privacy and freedom of speech.”
  • The Plea also states that this will put the privacy of professionals like Journalists for investigating news that might be unpopular, Activists and Politicians for discussing certain rights and sharing criticism, and lastly Clients and Attorneys who might be reluctant to share information fearing an invasion of privacy.
  • It also submitted that there is no such law enacted by the Parliament of India which requires the intermediaries to enable identification of the first originator. It submitted that as the impugned rule is passed by a Ministry and not the Parliament it is ultra vires.
  • The plea read “The impugned Rule 4(2) allows for the issuance of orders to identify the first originator of information in India without judicial oversight, which means that there is no guarantee against the arbitrary state action.”

Prayer sought by WhatsApp

  • It prayed that rule 4(2) in question should be struck down as unconstitutional.
  • It also prayed to the Court to issue a writ of Mandamus or any other appropriate writ, direction, or order to declare the rule violative of Article 14, 19(1)(a), 19(1)(g), and 21 of the Constitution of India, ultra vires to the Information Technology Act and illegal as to end-to-end encrypted messaging services.
  • That criminal liability cannot be imposed for non-compliance to rule 4(2)of the Information technology Rules 2021.
  • If any attempt is made to impose criminal liability due to the non-compliance of rule 4(2), it should be declared unconstitutional, ultra vires, and illegal.

Do you think enabling identification of the first originator should be done?

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