The government tells High Court WhatsApp cannot avail of fundamental rights

The government tells High Court WhatsApp cannot avail of fundamental rights

Foreign entity cannot challenge Indian laws

An affidavit was filed in the Delhi High Court by the Central government stating that being a foreign company WhatsApp cannot avail of fundamental rights. It cannot invoke the jurisdiction of the court or challenge the constitutionality of an Indian law under Articles 19 and 21 of the Constitution.

The Facebook-owned messaging giant had filed a lawsuit in the High Court against the Indian Government in May. It sought to block the traceability clause of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The rules require social media platforms, with more than five million users, to locate "the first originator of the information," if required by the local authorities.

The affidavit, filed by the Ministry of Electronics and Information Technology said that WhatsApp does not have a place of business in India. Thus, "the constitutionality of a provision of law cannot be challenged by a foreign commercial entity on the ground that it violates Article 19".

Senior Supreme Court advocate, Sanjay Hegde asserted, "While all fundamental rights are not available to foreigners, especially to a company, it is worth noting that all fundamental rights are also not available to the Indian companies. However, I do not see Indian courts taking this argument seriously on the matter of traceability and privacy."

The affidavit had contended that the traceability requirement does not need to break end-to-end encryption and it is the least intrusive way of identifying the originator of the information. WhatsApp's reluctance to modify its technology for compliance is not sufficient ground to invalidate a law.

In the 2018 Prajwala case (to eliminate child pornography, rape and gang rape imagery, videos, websites and other applications), the apex court had asked the government to identify persons who create or circulate problematic content. It said traceability would help curb fake news.

Meanwhile, WhatsApp said that it would not break its end-to-end encryption, as that would undermine the privacy of users. In order to trace even one message, messaging services would have to trace every message.

Traceability requires messaging services to store information that can be used to ascertain the content of people's messages, thereby breaking the very guarantees that end-to-end encryption provides.

India is WhatsApp's largest market with over 400 million users.