Court has to nip this foreign media revolt against the Indian Government in the bud

(Also refer the previous article: WhatsApp petition deserves to be rejected at the admission stage itself)

The case filed by WhatsApp in the Delhi High Court challenging the validity of the Intermediary guidelines issued on February 25, 2021, indicates that the company  wants to project itself as the “Privacy Champion” and a crusader to protect the Right to Privacy of Indian Citizens just like Twitter says it is the “Free Speech Champion”.

MeitY has put Twitter in its place through its press statement following the Twitter’s lofty statement.

Now it is time to address the WhatsApp which has chosen to confront the Indian Government through the Delhi High Court.

The statements made in the main prayer which the media is likely to highlight and may occupy the people’s mind are :

1) Impugned Rule violates the fundamental rights of the hundreds of millions of WhatsApp users in India and Petitioner, and is ultra vires its parent statute, manifestly arbitrary, and illegal. The balance of convenience is also in favour of Petitioner and against Respondent.

2) Will cause irreparable harm to the fundamental rights of Petitioner and its users and Petitioner’s reputation.

3) No demonstrable harm will be caused to anyone if the operation of Impugned Rule 4(2) is stayed pending adjudication of this Petition.

4) Impugned Rule 4(2) should be stayed during the pendency of the accompanying Petition as the Impugned Rule is without the authority of law, imposes onerous and
constitutionally invalid obligations upon Petitioner, and violates the fundamental rights of hundreds of millions of WhatsApp users throughout the country.

5) Request -Ex-parte ad-interim stay (i) the operation of Impugned Rule 4(2) as to Petitioner and its employees during the pendency of the accompanying Petition, and (ii) the imposition of criminal liability on Petitioner and its employees for non-compliance with Impugned Rule 4(2) during the pendency of the accompanying Petition;

Let us not be diverted by the above issues which the petitioner wants to be debated with the real issues that are now before the Court, such as the following.

  1. Should  the Court grant an  “Ex-Parte Stay” as requested?

It must be noted that this rule was notified 3 months back and the petitioner has approached only at the expiry of the time provided for compliance and is now alleging that they would be subject to a harm if the rule is not stayed.

The argument that the balance of convenience is in favour of the petitioner is therefore created out of the failure of the petitioner to approach the Court earlier.

Also, the petitioner’s contention that “No Demonstrable harm would be caused to anyone” is incorrect. Every minute this rule is not implemented, the law enforcement will have difficulty in tracing the origin of fake messages that may disturb peace and harmony in the society. Public will not have a grievance officer to check on their grievances if any. Messages that harm individuals and the community will continue to get transmitted in the platform, some of them causing harassment of women or children leading even to death and suicide.

There are already the “Three Tick misinformation” which is circulating in WhatsApp. There are innumerable Covid related mis-information causing panic and even death. Personal defamatory messages where videos of rape or morphed photographs are common in groups.

In all such cases there are hundreds of victims across India who want the perpetrator of the crime to be traced and punished. Hence there are thousands of individuals who would be harmed by any delay in the implementation of this rule.

The only harm that would be caused by the stay not being granted, to the petitioner, by this rule is that they will not be able to claim the defense of “Intermediary protection”. This will arise only in an instance where some legal proceedings are launched in which a WhatsApp message is an evidence.

This does not mean that WhatsApp will be held guilty and its officials would be put in jail. It only means that the Courts can include WhatsApp as a respondent and consider “Contributory Negligence” and “Vicarious liability” on WhatsApp and its executives (under Section 85). Such liabilities will fructify only when such a case comes up and WhatsApp is named as an entity that contributed to the commission of the crime.

Hence the Delhi High Court has to reject this argument of “Balance of Convenience” and not grant any interim stay.

2.  Violation of Fundamental Right of hundreds of millions of WhatsApp users 

WhatsApp has already violated the fundamental rights of the users in India by denying them any dispute resolution rights in the country since their terms of use indicate that

“for any claim or cause of action that WhatsApp files against you, you and WhatsApp agree that any such claim or cause of action (each, a “Dispute,” and together, “Disputes”) will be resolved exclusively in the United States District Court for the Northern District of California or a state court located in San Mateo County in California, and you agree to submit to the personal jurisdiction of such courts for the purpose of litigating any such claim or cause of action, and the laws of the State of California will govern any such claim or cause of action without regard to conflict of law provisions. “

This is in addition to the fact that under their mandatory privacy policy, personal data of the users would be shared with Face Book which can be used for profiling. Such profiling is also feasible on the political and religious views and can be used for any activity which can harm the security of the nation, its sovereignty and integrity.

While protection of Privacy of Indian citizens is important, between the petitioner and the respondent, it is the respondent who has the Constitutional responsibility and means. WhatsApp has no constitutional responsibility in India and has no means to protect the privacy of the hundreds of millions of Indians.

Its statements are a  tactic to divert the debate from its inability or refusal to abide by the laws of India.

The Court has to trust the Government of India to act responsibly and cannot accept the contention of the petitioner  that while WhatsApp is interested in protecting the fundamental rights of Indian citizens the Government of India is not.

Any forbearance shown on the part of the Court by admitting the petition would embolden every business entity big or small to challenge every law, rule or notification made by the Government.

3. Is the Government empowered to Govern the country on its own? or should it run Governance according to the diktats of the private sector companies ?

The real issue in the petition is whether the Government of India can make laws and subordinate regulations without the interference of the vested interests on the speculation that if the law is passed, there will be a harm to their “Fundamental Rights”.

If the Government makes a bad law that hurts any person, the person who is aggrieved can show his damage and approach the Government for correction of the law, failing which the Court.

If for every day to day regulation, the Court has to stand as an arbiter, then the Judiciary has to run the executive and the Parliament can be dissolved.

In recent times, misplaced enthusiasm of some advocates have often made the Court the executive office for drafting the operational guidelines for many aspects such as how much of oxygen has to be supplied to which hospital or which state at what price etc.

The practice of judiciary intervening in the day to day operations of the executive when no harm has been caused, merely on the speculation of a harm is a misuse of the facility of Writs which have to be reserved for the rarest of rare circumstances.

If the petition is not dismissed at the current stage, there will be a vindication that the executive does not have any powers to pass rules even when the rule categorically mentions that it is under the reasonable exemptions provided under the constitution or under earlier Supreme Court decisions.

This will induce a policy paralysis in the country where  the Government has to put every notification for approval in the Court. Probably a special bench would be required to attend to the “References”.

Hence the Court should dismiss the petition right now and advise the petitioner to approach if there is any damage that occurs to him on account of the proposed regulation at which point of time the issue of whether the subordinate law is ultra vires the parent act or whether the parent act is ultra vires the constitution may be considered.

We hope the Court will come to the right conclusion and nip this revolt in the bud.

We hope that the above points are put across forcefully by the Government advocates at the admission stage, strongly  opposing the admission.

If the case is admitted, as a secondary option, the stay has to be opposed vigorously and if granted has to be challenged with an appeal.

The general tendency to accept admission out of reverence to Judiciary and then contest  the trial should be avoided.

Afterall, Courts are used to hearing arguments on “Sir, You donot have jurisdiction” or “Sir you have a conflict and should recuse yourself” and take them sportingly.

Hence it is OK to tell the Court that the admission of the case itself will send a wrong signal to the public that the Government has done something wrong and stay if granted will convey to the public that the Government is not empowered to pass even a notification on a law which has been in existence for over a decade without being challenged.

The Court should not appear to trust the speculative contentions of a petitioner more than the assurances of the elected Government.

If done, more than it being appreciated  as the independence of the judiciary, it will be a serious blow to the credibility of our democracy.

I hope that the Government advocates muster necessary courage to put across some of the above points before the Court and oppose the admission as vigorously as some of the private counsels do.

Naavi

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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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