The government has filed an affidavit in the Delhi High Court to dismiss WhatsApp's petition challenging the new IT laws. According to sources, it has informed HC that the plea is "not maintainable".
Centre says WhatsApp is a foreign commercial entity that does not have a tangible presence in India and is in the business of spreading information created by its users.
"The petitioner, which is an out and out foreign commercial entity – it has no place of business in India and is in the business of spreading information created by its platform
users."
The government claims that WhatsApp, as a foreign company, is unable to exercise fundamental rights under Articles 19 and 21 of the Constitution, invoke the court's jurisdiction or challenge
the constitutionality of an Indian law since it is a foreign company.
"A foreign commercial entity cannot challenge the constitutionality of a law on the grounds that it violates Article 19 rights." Citizens have exclusive access to the aforementioned
rights. In the case of companies, the law allows derivative action, but it can only be brought by an Indian citizen who is also a stakeholder in the company, and it is limited to Article 19(1)(g) rights. The present petition,
in which no citizen has claimed derivative rights, is thus not maintainable," the Centre stated.
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The government issued the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 in February, requiring social media intermediaries such as Twitter, Facebook,
Instagram, and WhatsApp to monitor chats and make provisions to identify the first source of information.
WhatsApp filed a lawsuit in the High Court, challenging the new IT regulations claiming that the new rules violate people's right to privacy and are therefore unconstitutional. In India,
the requirement of intermediaries enabling the identification of the first source of information upon government or court order puts end-to-end encryption and its benefits "at risk," as per the Facebook-owned company.
The requirement for traceability pressures the company to break end-to-end encryption on its messaging service, as well as the privacy principles that underlie it and infringes on the fundamental rights to privacy and free speech of the hundreds of millions of citizens who use WhatsApp to communicate privately and securely, according to the petition.
WhatsApp asked the high court to declare Rule 4(2) of the Intermediary Rules unconstitutional, ultra vires the IT Act, and illegal in its 224-page plea.