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Mainstream, VOL LIX No 26, New Delhi, June 12, 2021

Right To Privacy Is Not An Absolute Right | Chittarvu Raghu

Saturday 12 June 2021

by Chittarvu Raghu *

Ministry of Information Technology, Government of India issued a notification dated 25th Feb, 2021 in exercise of powers conferred under Sub Sec.1 & 2 of Sec. 87 of the Information Technology Act, 2000, framing rules titled as ‘the Information Technology (Intermediaries guidelines & Digital Media Ethics Code) Rules, 2021. The Rules have come into force after the expiry of three months window period.

Rules 4(2) of the contemplates that a significant social media intermediary providing services primarily in the nature of messaging shall enable the identification of the first originator of the information on its computer resource as may be required by a judicial order passed by a court of competent jurisdiction or an order passed by a competent authority as per the Information Technology (Procedure & Safeguards for Interception, Monitory and Decryption of Information) Rules, 2009.

Rule 2(v) defines ‘significant social media intermediary as having number of registered users in India above such threshold as notified by the central government. Rule 2 Clause (w) defines ‘social media intermediary’ which means an intermediary which primarily or solely enables online interaction between two or more users.

‘WhatsApp’ which falls within the ambit of the definition of significant social media intermediary has filed a writ petition before the Hon’ble Delhi High Court mainly challenging Rule 4(2) of the Rules on the ground that the same is unconstitutional and the terms of the Rule unreasonably infringe upon the individuals fundamental right to freedom of speech and expression as well as their right to privacy.

Rule 4(2) is conditioned by the proviso’s contained therein. Though Sub Rule 2 mandates that a significant social media intermediary should enable the identification of the first originator of the information as required by the judicial order or an order passed by the competent authority under the relevant rules, the same is conditioned by the first proviso. The first proviso contemplates that such an order shall only be passed for the purpose of prevention, detection, investigation, prosecution or punishment of an offence related to the sovereignty and integrity of India, the security of the State, friendly relation with foreign states, or public order or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material, punishable with imprisonment for a term of not less than five years. A reading of the proviso shows that while passing an order under Sub Rule 2, the court or the competent authority prima facie should be satisfied with regard to the above said aspects mentioned in first proviso. It is a safeguard provided

The words public order, security of the State etc., have not been defined under the Rules. It depends upon the facts and circumstances of each case. The main thrust of the argument is with regard to violation of ‘right to privacy’ and ‘the freedom of expression’. When the Rules demand an intermediary to comply with certain conditions, the same may not constitute any violation of right to privacy or freedom of expression vis-vis the intermediary. If at all any person is aggrieved, it is the originator of the information. A safeguard has already been provided under the first proviso which contemplates as to when orders have to be passed by the Court or the competent authority under Rule 4(2) and the intermediary cannot in any manner be aggrieved. If any issue arises as to whether the orders passed by the court or the competent authority are in contravention of the conditions stipulated in the first proviso, the same may be challenged by the aggrieved person and the adjudication varies basing on the facts and circumstances of each case.

In aadhar’s case (Justice K.S.Puthuswamy(retired) & another Vs. Union of India) nine judges of the Hon’ble Supreme Court have held that right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part – III of the Constitution of India. The reference that was made to the nine judges bench was mainly as to whether right to privacy is an in alienable fundamental right under Article 21 and other fundamental freedoms contained in Part – III of the Constitution or not.

Justice Chandrachud held that like other rights which form part of the fundamental freedoms protected by Part – III including the right to life and personal liberty under Article 21, privacy is not an absolute right. A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. In the context of Article 21, an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. Justice Nariman held that a right is subject to reasonable regulations made by the State to protect legitimate State interest or public interest and held that in ultimate analysis the balancing act that is to be carried out between the individual, societal and State interest must be left to the training and expertise of the judicial mind, which in fact is contemplated under Rule 4(2).

Justice Abhay Manohar Sapre had held that right to privacy is not an absolute right but subject to certain reasonable restrictions which the State is entitled to impose on the basis of social, moral and compelling public interest in accordance with law and also held that the right to privacy has multiple facets and the same has to go through the process of case-to-case development as and when any citizen raises his grievance complaining of infringement of his alleged right in accordance with law.

Justice Sanjay Kishan Kaul held that right of an individual to exercise control over its personal data and to be able to control his / her own life would also encompass his right to control his existence on the internet. He further held that the same would not be an absolute right.

The entire judgment was dealing with an issue as to whether right of privacy is within the ambit of the freedom guaranteed under Part – III and liberty under the Article 21 of the Constitution of India. Ultimately it was held that right to privacy forms a part of freedom guaranteed under Part – III and liberty under the Article 21 of the constitution that subject to reasonable restrictions. The first proviso contained in Rule 4(2) imposing restrictions while exercising the power under Rule 4(2) would satisfy the safeguards provided to the aggrieved person. Therefore Rule 4(2) in the light of the first proviso may not be in violation of the freedoms guaranteed under Part – III and in Article 21 of the constitution. When the State takes any action invoking Rule 4(2), the same can be tested on case-to-case basis. Therefore the argument that the power vested under Rule 4(2) constitutes invasion of right to privacy may not be sustainable.

The other argument of the intermediary is with regard to the capability of storing such vast data so as to retrieve the same when demanded under Rule 4(2) of the Rules. Obviously if the State is invoking Rule 4(2), in order to satisfy the requirements contained in the first proviso the State has to establish the nexus between the reasons for invocation and the origin of messages vis-vis the proximity of time. Therefore the interest of intermediary can be protected if a reasonable time period is stipulated to invoke Rule 4(2) from the date of displaying the alleged messages for the purpose of preserving them.

(Author: Chittarvu Raghu, Advocate, High Court’s of A.P. & T.S. Email: craghuadvocate[at]gmail.com )

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