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The Indian government, today, claimed that its new Intermediary Rules aren’t in violation of the Supreme Court’s right to privacy judgement of 2017. Referring to a case filed by Facebook-owned WhatsApp in the Delhi High Court today, the government said, in a statement, that it recognises that ‘Right to Privacy’ is a fundamental right and “has no intention" to violate it.

“The Government of India is committed to ensure the Right to Privacy to all citizens but at the same time it is also the responsibility of the government to maintain law and order, and ensure national security," said Union Minister Ravi Shankar Prasad. “None of the measures proposed by India will impact the normal functioning of WhatsApp in any manner whatsoever and for the common users, there will be no impact," Prasad added in the statement.

Further, the government argues that Right to Privacy itself is subject to “reasonable restrictions", and the IT rules are “an example of such a reasonable restriction". It claimed that the rules pass the test of proportionality exception defined by the Supreme Court in 2017 as well. “As per the Intermediary Guidelines, the originator of information can only be traced in a scenario where other remedies have proven to be ineffective, making the same a last resort measure," the government said.

The messaging platform had filed a case against the Indian government on May 25, arguing that the new IT rules would require it to violate all users’ privacy, and is against the right to privacy ruling.

“Requiring messaging apps to “trace" chats is the equivalent of asking us to keep a fingerprint of every single message sent on WhatsApp, which would break end-to-end encryption and fundamentally undermines people’s right to privacy," the company said in a statement. “We have consistently joined civil society and experts around the world in opposing requirements that would violate the privacy of our users. In the meantime, we will also continue to engage with the Government of India on practical solutions aimed at keeping people safe, including responding to valid legal requests for the information available to us," it added.

The Government’s stand is not unfounded, and sovereignty and security cannot be compromised. However, reasonable restrictions cannot compromise the basic structure of the Constitution," said Siddharth Jain, Co-Founding Partner, PSL Advocates & Solicitors. “Courts are the interpreter of laws and guardian of the Constitution. The Court’s findings would, indeed, go a long way," he added.

“With either side coming out to defend their stance the fact of matter remains that traceability under Rule 4(2) (if the IT Rules) is a double-edged sword, and if decided by the honourable Supreme Court to be within the limits and powers of the Government’s law-making diktat, has to be used judiciously and proportionally," said Nakul Batra, Associate Partner, DSK Legal. “As an outcome of this tussle, the court may come up with suggestive guidelines as to how, when and under what circumstance this invasive intervention may be exercised," he added.

ABOUT THE AUTHOR

Prasid Banerjee

An engineering dropout, Prasid Banerjee has reported on technology in India for various publications. He reports on technology through text and audio, focusing on its core aspects, like consumer impact, policy and the future.
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