Tag Archives: Right to Privacy

Case Summary

JUSTICE K.S PUTTASWAMY & Anr. VS. UNION OF INDIA & Ors., (2017) 10 SCC 1

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This Case Summary is written by Darshee Madhukallya & Chetan Anand Mohapatra, students of National Law University and Judicial Academy, Assam

BACKGROUND OF THE CASE

The Aadhaar scheme was initially launched back in 2009 by the then Congress Government. In 2014, the Government under Narendra Modi had launched a national identification program which would require the people to provide their biometric detail and has thereby set up and agency as Unique Identification Authority of India (UIDIA). It aimed at providing for the individuals a unique identity card. Through this Aadhar system, the biometric details of individuals including fingerprint, face scan, eye scan are taken and they are provided with a unique 12 digit number. It aimed at curbing corruption and working for the welfare of the people by providing them benefit of various schemes. The government made Aadhaar mandatory for availing welfare schemes like MNREGA, Mid Day Meals, etc. 

But there were instances where the confidential details of various individuals got leaked on online platform. This created confusion among the public and at the same time the government had started mandating Aadhaar. This would now allow a person to view every details of an individual, thus violating its privacy. Thus in the year 2012, former Karnataka High Court Retired Justice Mr. Pravesh Sharma and KS Puttaswamy filed a Public Interest Litigation Writ Petition (Civil) No. 494 of 2012 challenging the constitutionality of Aadhaar stating that it violates the Right to privacy. 

This case has been one of the lengthiest cases in India. The relevance of the case lies in the fact that, Right to Privacy was declared a fundamental right as well as granted protection under Article 21 of the Constitution. Also this case has cast a vast impact on various legislations pertaining to same sex marriage, beef ban, etc in India. 

FACTS OF THE CASE

In the year 2012, a Public Interest Litigation was filed by former Karnataka High Court Justice KS Puttaswamy challenging the act. In the year 2016, the Aadhaar Act was framed as a money bill and passed in the Parliament which provided a legal backing to the unique identification system. After this a second writ petition was filed challenging it and was merged with the earlier petitioned by Justice Puttaswamy. The case was then presented before a three judge bench on the basis that it violated the right to privacy. But the Attorney General of the state argued that in the case of M.P Sharma v. Satish Chandra (1954) SCR 1077 (8 judge bench) and Kharak Singh v. State of Uttar Pradesh, (1963) SC 1295 (6 judge bench), the Supreme Court had refused to accept that the right to privacy is a constitutionally protected rights.

In the year 2015 it was referred to a five-judged bench to discuss the validity of the Aadhaar. However an eleven judge bench was also formed that uphold the dissenting view in the Kharak Singh case which has led to various benched of the SC to recognize the Right to Privacy. In this context, a nine-judge bench of the Supreme Court was formed to question regarding privacy as a fundamental right and in the year 2017, it was decided by the bench that right to privacy fall under the ambit of Article 21. Thus, on 26th September, 2018, the five-judged bench in 4:1 ratio gave its verdict that proving of biometric data is not a violation of fundamental right under Article 14, 15, 19 & 21. Although it upheld the Aadhaar Act as constitutional but had struck down the Section 2d, 33(1) (2), 47 & 57 of the Aadhaar Act, 2016 as unconstitutional. With regard to right to privacy as a fundamental right, the nine-judge bench struck down the decisions laid down in the case of M.P Sharma and Kharak Singh case and held privacy to be a right under the Fundamental Rights.

ISSUES RAISED

  1. Whether the Right to Privacy is protected under the Fundamental Rights under Party III of the Indian Constitution?
  2. Whether the government has proper measures to protect the privacy of the individuals in the biometric system?

ARGUMENTS ADVANCED

PETITIONER

KS Puttaswamy objected that the government has no proper legislative backing to protect the stored data and that there is a chance of data intrusion violating the privacy of individuals. He also pointed that it is a fundamental right to a welfare state and so the provisions of the government to link the Aadhaar card is not valid. Strict application of Aadhaar Act may pose a severe concern as it violates the Fundamental Rights and liberties granted to the Indian citizens He also refereed to cases like Govind v. State of Madhya Pradesh & Ors., (1975) 2 SCC 148; Maneka Gandhi v. Union of India, (1978) 1 SCC 248; R. Rajgopal v. State of Tamil Nadu, (1994) 6 SCC 632, etc where right to privacy was provided constitutional protection.

RESPONDENT

The defendant argued that the Indian Constitution does not specifically protect the right to privacy and that, as a result, the right to privacy was not guaranteed under the Constitution, and thus Article 21 of the Indian Constitution (the right to life and personal liberty) had no application as seen in both M. P. Sharma and Kharak Singh case.

JUDGMENT 

The 547-page decision comprises six opinions and numerous intriguing insights. It is crucial to note, however, that only the majority view in a ruling is binding on future cases. Chandrachud J. put down the plurality opinion in this case on behalf of four judges (Kehar C.J., Agrawal J., Nazeer J., and himself), while the remaining five judges (Nariman J., Kaul J., Bobde J., Sapre J., and Chelameswar J.) wrote concurring standpoints. As a result, while Justice Chandrachud’s view is the “plurality” opinion, it does not form a majority because it was not signed by five or more judges. Similarly, concurring opinions are not binding and do not set “precedent” for future cases. As a result, the operative part of the judgment, i.e. the binding part, is merely the order signed by all nine judges, which states:

The judgement of an eight-judge panel in M P Sharma case (1954), which concluded that the right to privacy is not protected by the Constitution, has been overturned. The Court’s following decision in Kharak Singh case (1962) is also overruled insofar as it holds that the right to privacy is not guaranteed by the Constitution. The right to privacy is protected as an inherent 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 and the body of case law that developed following Kharak Singh, recognizing the right to privacy, enunciated the correct legal position.

Justice Chandrachud (on behalf of himself, C.J. Kehar, J. Agrawal, and J. Nazeer): He said that an individual’s privacy is not completely abandoned when they are in the public realm. Furthermore, it was determined that the right to privacy comprised both a negative right against State intrusion, such as the prosecution of homosexuality, and a positive right to be protected by the State. On this basis, the Judges determined that India needed to implement a data protection regime.

Justice Chelameswar: In his ruling, the Judge stated that the right to privacy included the freedom to refuse medical care, the right to resist forced feeding, the right to consume beef, and the right to display religious symbols in one’s personal appearance, among other things.

Justice Bobde: The Judge stated that agreement was required for the transfer of intrinsically personal data such as medical information.

Justice Nariman: In this concurring decision, the Judge divided privacy into three categories: non-interference with the individual body, protection of personal information, and autonomy over personal choices.

Justice Sapre: The Judge stated that, in addition to its existence as an independent right, the right to privacy included an individual’s rights to freedom of expression and movement, and that it was necessary to satisfy the constitutional aims of liberty and fraternity, which ensured the individual’s dignity.

Justice Kaul: The Judge discussed the right to privacy in terms of protecting informational privacy and the right to maintain one’s personal reputation. He stated that the legislation must protect data and limit national security exceptions that allow the State to intercept data.

The Court also acknowledged that the right was not absolute, but that it might be limited if this was granted by law, corresponded to a legitimate aim of the State, and was proportionate to the goal it aimed to achieve.

It is a well-established legal concept that a case is only authoritative for what it decides, not for any observations made during the course of the decision or any assertions that may logically arise from it. As a result, in order to establish which portions of the verdict are binding, it is necessary to evaluate each viewpoint and look for points of agreement among a majority of the nine judges. So, if any judge agrees with Chandrachud J.’s opinion on any issue, it would result in a majority of five out of nine, and thus be binding on lesser benches and other courts. For example, because a majority of the judges agree that privacy is an inalienable natural right that is part of the case’s binding aspect.

CRITICAL ANALYSIS/REASONING

The Aadhaar Act was enacted to provide identity and empowerment to the society’s underprivileged groups. It assigns each Indian citizen a unique identity number. Because the Aadhaar number is unique, it cannot be replicated. The unique identification ensures that the government’s benefits and subsidies are only available to the people who are eligible for them. Aadhaar can prevent unethical actions and the loss of thousands of crore of rupees. Many privacy rights concerns were raised in the case as well. The arguments for privacy rights were founded on the issues of citizen dignity, informational self-determination, and consent. 

The right to privacy was a critical component of the argument. On September 26, 2018, a five-judge bench of the Supreme Court issued a decision in favour of the respondents. The Court affirmed the validity of Aadhaar after striking down certain provisions and sections of the Act that were contrary to the Constitution and violated citizens’ rights. After striking down Sections 33(2) and 57 of the Act, Justice A K Sikri, who wrote the majority opinion, deemed the Aadhaar Act to be lawful. The petitioners expressed a number of concerns, including the right of citizens to privacy, the danger of state surveillance, and the breach of information acquired by the government for citizens’ Aadhaar cards. The petitioners’ questions have weakened UIDAI’s assertion that their system is one of the best in the world and secure enough to keep citizens’ information safe. The Court ruled that the Aadhaar Act was constitutionally legitimate because it was subject to reasonable constitutional constraints.

However, the majority ruling does not protect the demand of autonomy and choice by maintaining the Aadhaar Act. The necessity of Aadhaar for access to government services and benefits, as well as the connection of Aadhaar to the Permanent Account Number (PAN) card permitted by the Supreme Court majority decision, lacks a sufficient constitutional foundation. Even minor exclusions from government initiatives owing to a lack of Aadhaar or an authentication glitch could result in a violation of the constitution’s guarantee of dignity protection. Despite the fact that the majority has struck down Sections 33 (2) and 57, the overall justification for upholding the Aadhaar Act as constitutional fails to meet the criteria of reasonable goal and reasonable means to infringe on the right to privacy.

CONCLUSION

This case gave a new perspective to the right of privacy of individuals. Although Aadhaar Act contains threat to the privacy of individuals but at the same time it has created a system where people can benefit from the schemes of the Government that aims towards a welfare state. Also every person has a right to privacy and thus any schemes or plan implemented by the government should be framed in a way that it doesn’t infringe the basic fundamental rights of the people. The Court’s expansive understanding of the right to privacy has cleared the way for a diverse set of claims. While the precise limitations of the right will continue to evolve case by case, it is obvious that privacy claims will frequently have to be evaluated against other conflicting interests. In the absence of a specified hierarchy among the many rights protected by Part III of the Constitution, each case will be decided solely on the circumstances at hand and the judicial interpretation. For example, can a law on marital rape infringe on a married woman’s dignity, which is central to her privacy and liberty, in order to protect the family’s “private affairs”? Is the efficiency of having a meta-database of information on all citizens more important than the autonomy of those who oppose its implementation? Can an individual’s “right to be forgotten” on the Internet trump many others’ open information needs? In fact, a PIL was filed before the Delhi High Court just last week alleging that the restitution of conjugal rights provision in the Hindu Marriage Act and Special Marriage Act violates the right to privacy. The true test of privacy will be how successive Courts apply the Puttaswamy ruling to these various problems.

Articles

DATA PROTECTION BILL AND RIGHT TO PRIVACY 

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This article is written by Riddhi Patni, a student of Maharashtra National Law University, Aurangabad

 ABSTRACT

The Right to Privacy is one of the most challenging issues to address. One of the most difficult concepts to define is privacy, which cannot be understood as a static and one-dimensional concept. It can only be interpreted as a set of rights.  It is clear from the facts that an identity is stolen every 79 seconds, recognising that privacy concerns are the wildest increasing crime of these days. The right was recently enshrined in Article 21 of the Indian Constitution by the Supreme Court. Still, it has become a contentious issue due to concerns raised about the government’s initiatives to collect personal data from citizens. Not only is the right to privacy at stake, but so is the Data Protection Bill.  Article 21 of the Indian Constitution includes the right to privacy as a requirement of the right to life and personal liberty. The term privacy, in particular, is a dynamic concept that needed to be clarified. Under the Indian Constitution, the scope of Article 21 is multifaceted. 

INTRODUCTION TO PRIVACY 

According to Black’s Law Dictionary, “the right to privacy means the right to be left alone; the right of an individual to be free from unwarranted interference”. Recently, Justice D.Y. Chandrachud delivered a judgement that overruled the principles developed in the Habeas Corpus case in the case of Justice K.S. Puttaswamy and ors. v. Union of India , which evolved as a landmark judgement in India’s history regarding the status of Right to Privacy. The terms privacy and right to privacy are difficult to grasp. To better understand this, consider how privacy has been interpreted in various situations. According to Tom Gaiety, “the right to privacy entails the inviolability of one’s body as well as the integrity and intimacy of one’s personal identity, including marital privacy”.  

Fundamental rights are basic rights that every human being inherits, and such rights should be granted to every citizen of the country, along with appropriate remedies. Certain private and secret aspects of human beings cannot be revealed to the public. Following the recent case of 2017, the right to privacy has gained momentum around the world, and it has been recognised as a fundamental right to privacy. Various countries, including the United States, the United Kingdom, and India, have given convincing recognition to the right to privacy, as have international organisations such as the UDHR, the International Covenant on Civil and Political Rights, and the European Convention on Human Rights . 

VARIOUS ASPECTS OF THE RIGHT TO PRIVACY 

Phone Tapping and Right to Privacy 

Phone tapping and the right to privacy are being impacted by new technological developments relating to a person’s correspondence, which has become a contentious issue. The Supreme Court stated in R.M. Malkani v. State of Maharashtra  that it will not tolerate safeguards for citizen protection being jeopardised by allowing the police to use unlawful or irregular methods. Telephone tapping is a violation of the right to privacy and freedom of expression, and the government cannot impose restrictions on publishing defamatory materials about its officials, which violates Articles 21 and 19(1)(a) of the Constitution. 

Gender Priority on Privacy 

This other aspect of the right to privacy is gender priority, which implies not only the right to prevent the inaccurate portrayal of private life, but also the right to prevent it from being depicted at all. Even a woman of simple virtue has the right to privacy, and no one has the right to intrude on it. Every female has the fundamental right to be treated with decency and dignity. Health and Privacy 

The health sector is a major source of concern in privacy, as well as one of the most important aspects of the right to privacy. Health information includes not only information about one’s health or disability, but also information about health services that one may receive. Many people have a human tendency to regard health-related information as highly sensitive. The right to life is so important that it takes precedence over the right to privacy. A doctor is bound by an oath or by medical ethics not to reveal confidential information about a patient if doing so would jeopardise or endanger the lives of others. 

Privacy in context of Sexual Identities 

One aspect relating to the right to privacy, which has been enshrined in Article 21 of the Indian Constitution, was read down in the case of Naz Foundation v. Union of India, in which the Delhi High Court struck down Section 377 of the Indian Penal Code, 1860, so as to decriminalise a class of sexual relations between consenting adults and intrusion by the state only if the state was able to establish one of the critical arguments, protected by Article 21 of the Indian Constitution, was a compelling interest. The Supreme Court of India ruled in Navtej Singh Johar v. Union of India that Section 377 of the Indian Penal Code, 1860, as it applied to consensual sexual conduct between adults in private, is constitutional. 

RECENT ADVANCES IN THE RIGHT TO PRIVACY 

It will be sufficient to encroach into any sphere of activity once the right to privacy is recognised as a fundamental right under Article 21. The infringement of such a right has become extremely difficult with the advancement of technology and social networking sites. 

The degree to which privacy is important to individuals is subjective and varies from person to person. Section 43 of the Information Technology Act of 2000 includes a Right to Privacy provision that makes unauthorised access to a computer resource a crime. 

The right to press is included in Article 19(1)(a) of the Indian Constitution, which can sometimes conflict with the right to privacy. Then the question arises as to where there is a conflict between an individual’s right to privacy and another person’s right to press. Such a question is well answered by bringing up the concepts of public interest and public morality, as well as other provisions mentioned in Article 19(2) of the Indian Constitution. Personal information about an individual may be published without his consent if it is part of public records, including court records. 

In several ways, the right to privacy may conflict with police investigations. Various tests, such as Narco-Analysis, Polygraph or Lie Detector tests, and Brain Mapping tests, infringe on a person’s right to privacy. The Supreme Court recognised the distinction between physical and mental privacy in the case of Selvi and others v. State of Karnataka , and this case also establishes the intersection of the right to privacy with Article 20(3) of the Constitution. 

THE PERSONAL DATA PROTECTION BILL (PDPB), 2019 

The Minister of Electronics and Information Technology introduced the Personal Data Protection Bill, 2019, in Lok Sabha. The purpose of this Bill is to provide for the protection of individuals’ privacy in relation to their Personal Data and to establish a Data Protection Authority of India for these purposes and matters relating to an individual’s personal data. The Bill proposes to repeal Section 43-A of the Information Technology Act of 2000 by removing the provisions relating to compensation payable by companies for failure to protect personal data. The Personal Data Protection Bill, among other things, specifies how personal data should be collected, processed, used, disclosed, stored, and transferred. 

The PDPB proposes to protect “Personal Data” relating to a natural person’s identity, traits, and attributes, as well as “Sensitive Personal Data” such as financial data, health data, official identifier, sex life, sexual orientation, biometric data, genetic data, transgender status, intersex status, caste or tribe, religious or political beliefs. 

CONCLUSION 

When we consider ourselves to be members of a society, we frequently argue that we are individuals first, and that in this world, each and every person or individual requires his or her own private space. To ensure that each individual has that right, the state is providing those private moments to be enjoyed with those they choose away from the prying eyes of the rest of the world. This right is becoming increasingly important as time passes. With all of our lives being exposed to the media via social networking sites or spy cameras, everyone needs to be protected, and it should act in such a way that no one thinks of invading an individual’s right to privacy. Privacy should be protected in all aspects, but it is subject to reasonable restrictions under the provisions of the Indian Constitution and other relevant statutory provisions in force. One must understand that privacy should be kept in mind and should be kept within the confines of not explaining to the rest of the world. 

Following the enactment of the PDPB into an Act, there are several compliances that organisations processing personal data must follow in order to ensure the privacy of individuals relating to their Personal Data. Individual consent would be required for the processing of personal data. Organizations will have to review and update data protection policies and codes based on the type of personal data being processed to ensure they are consistent with the revised principles, such as updating their internal breach notification procedures, implementing appropriate technical and organisational measures to prevent data misuse, and appointing a Data Protection Officer to be appointed by the Significant Data Protection Officer . 

Articles

The New IT Rules, 2021 and the Threat to Right to Privacy

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This article is written by Aviral & Aditya Tiwary, students of ICFAI University, Dehradun.

Introduction

The Digital India program has empowered the citizens of the country with technology and the internet. Subsequently, this has enabled many social media platforms to connect people across the country. This has also aided the social media platforms to gain innumerable users. According to the data released by the Ministry of Information and Technology (MeitY), the user base of major social media platforms stands as:

  • WhatsApp users: 53 Crore
  • Facebook users: 41 Crore
  • Instagram users: 21 Crore
  • Twitter users: 1.75 Crore

The proliferation of social media platforms, on the one hand, allows numerous benefits to the people while, on the other hand, gives rise to serious concerns relating to the abuse of these platforms. In 2018, it was observed by the Supreme Court that the Indian Government might frame necessary guidelines to eradicate child pornography, rape and gang rape images, videos from such sites, platforms and other applications. In 2020, an Ad-hoc committee of the Rajya Sabha submitted its report on social media pornography and its effects on children and society as a whole. The report recommended tracing the originator of such messages. The Ministry of Information and Technology, on February 26, 2021, introduced the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The new rules replace the earlier Information Technology (Intermediary Guidelines) Rules, 2011. It requires significant social media intermediaries, i.e., social media platforms having more than 50- lakh-user base, to comply with a host of new rules. Under these latest rules, the intermediaries are required to appoint a grievance officer, a chief compliance officer, and a nodal contact person who must be residents of India. They are also required to publish a monthly compliance report of actions taken regarding grievances received by the officers. Furthermore, these intermediaries need to have a physical contact point in India mandatorily published on their website.

The Breach of End-to-End Encryption and Privacy 

These new rules will assist the users in having a safe online environment. However, the stumbling block of these new rules is the drastic inroads into the fundamental right to privacy. The new rules require the breach of end-to-end encryption for compliance in some instances. End-to-end encryption means that only the sender and receiver can access the messages, images, documents, and calls being exchanged between them. A third person cannot access the conversation. These messaging platforms store minimal user data to facilitate the messaging services.  The right to privacy was upheld to be a fundamental right protected under Articles 14, 19, and 21 of the Constitution of India in the case of Justice K.S. Puttaswamy (Retd.) vs Union of India. In 2017, the nine-judge bench of the Supreme Court of India unanimously gave a judgment that citizens of India have a fundamental right to privacy even though it is not expressly mentioned. It should be interpreted from the text and the thought process under which the constitution-makers would have drafted the constitution for the country. The loopholes in the new IT rules, 2021 (mis), using which the fundamental right to privacy can be potentially breached, are as follows.   

  1. Identification of the first originator- 

The new IT Rules, 2021 have, under sub-rule (2) of Rule 4, made it mandatory for a significant social media intermediary providing messaging services such as WhatsApp, Signal, Telegram and others to enable the identification of the first originator of a message flagged by either court of law or an authorised government agency. These platforms use end-to-end encryption for protecting the user’s privacy. The rules require WhatsApp to unmask only such people who are credibly accused of wrongdoing. The company says it cannot do that alone in practice as messages are end-to-end encrypted. They further state that they would have to break encryption for receivers as well as originators of messages. While challenging the new IT rules, a WhatsApp spokesperson said that requiring messaging apps to trace chats is the equivalent of asking us to keep a fingerprint of every single message sent on WhatsApp, which would break end-to-end encryption and fundamentally undermine people’s right to privacy”. Identifying the first originator will consequently mean accessing all users’ messages and the consequential breach of the end-to-end encryption. This is a grave threat to the right of privacy of the users on such platforms. BN Srikrishna, retired Judge of the Supreme Court in The Economic Times, stated that requirements such as traceability could open up unregulated access to people’s private messages, if implemented without necessary safeguards. The circumstances under which the information regarding the first originator will be asked have not been mentioned. This expands the scope of misuse. The matter of tracing the first originator gets even more complicated if the originator is outside India. In such a case, the first originator of that information within the territory of India shall be deemed to be the first originator of the information. Without preventive measures like a feasible data privacy policy, tracing the first originator of a message will lead to encroachment of the fundamental right to privacy.

2. Claiming Intermediary Safe Harbor-

Under sub-section (1) of Section 79 of the IT Act, 2001, an intermediary will not be liable for third party content that they carry.  Further sub-section (2) mentions that the protection given under sub-section (1) will apply only if the intermediaries observe due diligence while discharging duties and follow necessary guidelines laid down by the government.  This points towards the need to disclose the information asked by the government. The obligation to provide immunity to intermediaries from actions of third parties came into focus following a case in 2004. In November 2004, an IIT student uploaded obscene video footage for sale on bazee.com, an auction website.
Along with the student, Avnish Bajaj, the then CEO of the website, was also arrested by the Crime Branch of Delhi Police. In 2005, the Delhi High Court held him liable under section 85 of the IT act. However, in 2012 this decision was overturned by the Supreme Court. Making it compulsory for the intermediaries to disclose the first originator by breaking down the end-to-end encryption is disparaging the intermediary safe harbour while also influencing the fundamental right to privacy.

Questions and concerns of the People

Centre for Internet and Society has raised concerns with the draft rules and has asked for total deletion of Draft Rules 4(2), 4(4), 4(5), and 4(9). Senior policy officer at the Centre for Internet and Society, Gurshabad Grover, said, “There are some parts of the rules which may infringe on user privacy and go against the data minimisation principle of the data protection law”. Divij Joshi, a Tech Policy member at Mozilla, also recommends that draft Rule 4(5) be deleted, stating that the “requirement to identify and remove access to all ‘unlawful content proactively’ is vague and overbroad.”  In a joint letter written by a group of experts from the realms of research, academia, and media, including Faisal Farooqui, Karma Paljor, Nikhil Pahwa, Shamnad Basheer and professors from IIM Bangalore and IIT Bombay, Free Software Foundation Tamil Nadu, Free Software Movement of India, Free Software Movement Karnataka and Software Freedom Law Centre, India, to MeitY, the various issues that the rules could cause, such as the traceability requirements interfering with the privacy rights of citizens, were pointed out. The 2021 Rules have been challenged in three high courts across the country. The first one was brought to the Delhi High Court in March this year by the Foundation for Independent Journalism, a non-profit organisation running the news portal, The Wire. The Delhi High Court issued notice on this petition on the 9th of March. The next day, the Kerala High Court issued notice on another petition filed by the legal news portal Livelaw challenging the concerned rules. The court has also restrained the Centre from taking any coercive action against LiveLaw under the new regulations. Quint Digital Media Ltd., which runs the digital news website “The Quint”, has also filed a petition in the Delhi High Court. The Truth Pro Foundation India (TPFI) has also filed a petition in the Karnataka High Court. Praveen Arimbrathodiyil has filed another batch of petitions on the issue, a free-and-open-source (FOSS) programmer in the Kerala High Court and Advocate Sanjay Kumar Singh in the Delhi High Court.

Conclusion

The sanctity of privacy in a country like India, which is the largest democracy and has the 2nd largest population globally, must be respected. Freedom of speech and expression is the basic fundamental right of any democracy. The new rules regarding identifying the first originator could breach end-to-end encryption, and therefore, infringe the right to privacy. Other workarounds can be used instead to mitigate the spreading of fake news and any offence relating to the sovereignty and integrity of India. Dr Manoj Prabhakaran, a Professor at IIT Bombay, specialising in cryptography, submitted in his report that it is not clear if traceability serves as much of deterrence, given the prevalence of fake news spread openly through platforms like Twitter, Facebook, websites and even mass media.
Moreover, a message can be sent as a new message without forwarding it, thus creating multiple first originators. A feature could be introduced by the intermediaries letting the user tag a message as “not for sharing” or “for limited sharing”, thereby limiting the length of the chain in which the message can be shared or forwarded. Alternatively, viral messages could be marked and made available publicly so that fact-checkers could add comments to them. Subsequently, the WhatsApp client can display these comments alongside the message. Once the required technology is available, an offline or online spam filter can be designed to mark inappropriate and unreliable messages. This will discourage users from sharing such messages. Finally, the only long-term measure to counter the spread of fake news is education and information literacy. Such efforts will help to regulate the online world and make it a safe space for everyone.