Delhi High Court Adjourns To August 27 Whatsapp's Plea Challenging Traceability Clause Under New IT Rules As Violative Of Right To Privacy

A Division Bench of Chief Justice DN Patel and Justice Jyoti Singh allowed the request made by Solicitor General Tushar Mehta, appearing for the Union of India, seeking a week's accommodation.

"Counsel appearing for Respondent No. 1 seeks adjournment. The request is allowed. Let this matter appear on August 27," the Bench observed.

Whatsapp's case is that the traceability clause will put professionals of risk including journalists who "could be at risk of retaliation for investigating issues that may be unpopular"; civil or political activists "for discussing certain rights and criticizing or advocating for politicians or policies" and clients and attorneys "who could become reluctant to share confidential information".

The company has also argued that the traceability requirement forces it to break end-to-end encryption on its messaging service and build the ability to identify the first originator for every message sent in India on its platform upon request by the government forever.

"There is no law enacted by Parliament that expressly requires an intermediary to enable the identification of the first originator of information in India on its end-to-end encrypted platform or otherwise authorizes the imposition of such a requirement through rule-making. While Impugned Rule 4(2) seeks to impose such a requirement, the Impugned Rule is not a valid law as it is subordinate legislation, passed by a Ministry and not Parliament, that is ultra vires its parent statute, Section 79," the plea read.

Furthermore, stating that the requirement does not pass the necessity test, the plea reads thus:

"Impugned Rule 4(2) allows for the issuance of orders to identify the first originator ofinformation in India without judicial oversight, let alone prior judicial oversight, which means there is no "guarantee against arbitrary State action". Impugned Rule 4(2) therefore should be struck down as it is an unconstitutional invasion of the fundamental right to privacy."

Challenging the Rule as being violative of Freedom if Speech and Expression, the plea states that once citizens become aware that SSMIs have "built the ability to identify the first originator of information in India on their end-to-end encrypted messaging services", such individuals "will not feel safe to speak freely for fear that their lawful private communications will be used against them, thereby infringing their rights to privacy and free speech."