Omanakuttan K.G v Union of India and others

WP(C): 12585/2021 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 28[TH] DAY OF JUNE 2021 / 7TH ASHADHA, 1943** ## **WP(C) NO. 12585 OF 2021** ## **PETITIONER/S:** **OMANAKUTTAN.K.G AGED 44 YEARS S/O. GOPALAN, RESIDING AT KIZHAKKEKURIYEDATHU HOUSE, AMARAVATHI (P.O.), KUMALI,IDUKKI DISTRICT 685 509.** **BY ADVS. M.VIVEK ARUN ASHOK NEENA JAMES** ## **RESPONDENT/S:** - **1 UNION OF INDIA REPRESENTED BY SECRETARY HOME AFFAIRS, NORTH BLOCK, CABINET SECRETARIAT, RAISINA HILL NEW DELHI 10001.** - **2 STATE OF KERALA REPRESENTED BY HOME SECRETARY SECRETARIAT, THIRUVANANTHAPURAM 695 001.** - **3 THE STATE POLICE CHIEF, POLICE HEAD QUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM 695 010.** - **4 THE REGISTRAR GENERAL, HIGH COURT OF KERALA, ERNAKULAM 682 031.** - **5 WHATSAPP INC, REP BY CEO, 650, CASTRO STREET, SUIT 120-219 MOUNTAIN VIEW, CALIFORNIA 94041, USA.** - **6 WHATSAPP APPLICATIONS SERVICES PRIVATE LTD., REP BY CEO, SALARPURA SATTVA KNOWLEDGE CITY LEVEL 1 UNIT 2, PLOT NO. 2, INORBIT MALL ROAD, HITECH CITY, HYDERABAD, TELENGANA, 500081.** WP(C): 12585/2021 2 ## **OTHER PRESENT:** **SRI. P.VIJAYAKUMAR, ASG FOR R1** **SRI. T.A.SHAJI, DIRECTOR GENERAL OF PROSECUTION AND SRI.P.NARAYANAN, SR GP FOR R2 AND R3** **SRI KAPIL SIBAL, SR ADV, SRI. MUKUL ROHATGI, SR ADV., SRI TEJAS KARIA, ADV, SRI PAVIT SINGH KATOCH, ADV, SRI AASISH SOMASI, ADV, MS. AKSHI RASTOGI, ADV, SRI. KOSHY JOHN, ADV AND SRI. THOMAS P KURUVILLA, ADV FOR R5** **SRI. ARVIND DATAR, SR ADV, SRI. VIVEK REDDY, SR ADV, SRI AJIT WARRIER, ADV, SRI. SHASHANK MISHRA, ADV, MS. PREETI KOLLURI, ADV, SRI. SHANTANU MATHUR, ADV, AND SRI.PRAJITH P, ADV FOR R6** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C): 12585/2021 3 **C.R.** ## **J U D G M E N T** ## S. Manikumar, C. J. ## Instant public interest writ petition has been filed for the following reliefs: - "(i) Issue a writ mandamus or any other appropriate writ, order or direction commanding respondent No. 1, to direct the respondent Nos.5 and 6, to comply with the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, in the interest of the nation. - (ii) Issue a writ mandamus or any other appropriate writ, order or direction commanding respondents 1 to 3, to pass appropriate orders directing the investigating agencies and other lawful authorities having the power of investigation and enquiry, not to rely on contents of WHATSAPP in their functioning and not to arrest or take into custody any individual, on the basis of WHATSAPP contents, which may appear like an act of crime or violation of law. - (iii) Issue a writ mandamus or any other appropriate writ, order or direction commanding respondent No.4, to pass appropriate orders to all the Courts of Law under the jurisdiction of High Court of Kerala that WHATSAPP contents shall not be considered at all for any purpose while conducting a trial, inquiry, or any other proceedings. WP(C): 12585/2021 4 - (iv) Issue a writ mandamus or any other appropriate writ or order or direction commanding respondent Nos. 5 and 6, to co-operate with the lawful authorities of the country and to provide with the needed data, so as to aid the authorities in maintaining the law and order in the country, and thus, to sub serve the justice system in India. - (v) If the respondent Nos. 5 and 6 are not willing to co-operate with the lawful authorities in India, then issue a writ prohibition or any other appropriate writ, order or direction, commanding the 1[st] respondent to ban/cease the operations of WHATSAPP mobile application managed by respondents 5 and 6 in India, in the best interest of the country." 2. The writ petition is filed in public interest, seeking for a ban on the social media platform WhatsApp, for the scope of manipulations at user end, and for the reason that it cannot trace the origin of a message, both media and text, that was circulated using its services. 3. Petitioner has stated that WhatsApp Applications Services Private Ltd., represented by its CEO, Hitech city, Hyderabad, respondent No.6, has approached the High Court of Delhi, claiming that it is not amenable to the newly introduced IT Rules, 2021 because of the end-to-end encryption, and thus, it cannot trace the WP(C): 12585/2021 5 origin of the messages circulated through it, and claims that the newly introduced Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, is against the right to privacy, as held in **Justice K. S. Puttaswamy (Retd.) and another v. Union of India and others** [(2017) 10 SCC 1]. 4. But, on the contrary, the 6[th] respondent, in its privacy policy, has stated that it will store the messages sent by a user, in certain circumstances, and that it will store and use all sorts of information and activities of its users. It also has access and uses the contacts in the address book of a user and can identify the contacts which are non users of its services. For identifying the non-user numbers, the App will use the contact numbers to search in its servers which in itself is violating privacy of the non-users. 5. Petitioner has further stated that the App is not free from manipulations and lacks security. A message received in the form of media can easily be manipulated even by any common man. A receiver can change the media received by him and such manipulation could easily cause unrest or panic among the general public and could be used against an individual. The App lacks WP(C): 12585/2021 6 security and reliability of messages and is a threat to society. The App is used by anti national and anti-social elements for their activities, as the same cannot be traced, due to the claim of the messaging App that the services are end-to-end encrypted. The respondents 5 and 6 are not cooperating with the law enforcement agencies of the country and trying to be above the law of the country in the guise of the technology. 6. Petitioner has also stated that the App has a separate privacy policy for the European Region, which is in tune with the laws prevailing in that region, and it is hesitant to abide by the laws of our country. In such circumstances, petitioner has filed this public interest writ petition for the reliefs stated supra. 7. In support of the prayers sought for, petitioner has raised the following grounds:- - A. Since it is revealed from Ext. P1 that the App can be misused for creating false evidences, any registration of crimes by a lawful authority or taking cognizance by the judiciary or any action by an executive body or evidences produced in any court of law on the basis of Whatsapp messages, video, images, documents etc. are to be nullified as untrustworthy. WP(C): 12585/2021 7 - B. The reliance placed on the instant messaging service such as Whatsapp for serving court summons and notices by the court of law and other lawful bodies are also at stake and the authenticity of the same will be questioned if the person on the other end is misusing the technique as narrated in paragraph (9). Moreover, even by using the well-known and highlighted features of the App, the purpose of such services can be easily defeated. - C. Since the App is exposed to the bugs and errors and can easily be manipulated by any person who has no hacking knowledge at all, any kind of communications sent through the said app could be manipulated. - D. Since the App in its privacy policy clearly stated that they will collect any type of data from its user including "messages", and their phone's battery level, signal strength etc., which obviously do not even come under the service area of the App, then they are bound to cooperate with the lawful investigating agencies and the court of law of the country to serve the justice system of the land. - E. Respondents 5 and 6 on various litigations and advertisements made a false statement that messages sent through it are end-to-end encrypted and hence, they have no access to it. The App claims that privacy of an Indian citizen is protected as even the App or the 5[th] respondent have no access to the messages sent through it. The said statement itself is contradictory to WP(C): 12585/2021 8 Exhibit-P3 privacy policy of the App, in which, the App admits that it can store the messages. - F. Since respondents 5 and 6 are amenable and generous enough to create a separate privacy policy or amend their privacy policies with respect to the laws prevailing in the European Region, then they are bound to cooperate with the lawful authorities of India and to comply with the laws of this land. - G. Respondents 5 and 6 are claiming immunity of the technology and privacy and are not cooperating with the lawful authorities of India. Then there is no justification for the lawful authorities in relying on WhatsApp contents such as messages and activities to prosecute any person in a crime or any other judicial/quasi-judicial proceedings and use the same as evidence against any person. - H. Now, the App has challenged the new Information Technology Guidelines claiming them as violating privacy of a citizen. The App in itself violates the privacy of its users and other non-user contacts of the user and blames the laws of this land as violating rights of the citizens. - I. Any detention or legal prosecution on the basis of any evidence procured from the App will curtail the basic fundamental rights of a citizen of India. - J. The App shall abide by the laws of this country so as to function here. If the App is not willing to change its technology and abide by the rule of law by cooperating WP(C): 12585/2021 9 with the lawful authorities of the country; then the App shall not be permitted to operate in this country. - K. The 1[st] respondent has banned many websites and mobile applications for being against the interest of the country. The 1[st] respondent is bound to pass appropriate orders banning the functioning of the App in the country. 8. Today, when the matter came up for admission, Mr. M. Vivek, learned counsel for the petitioner, submitted that the 1[st] respondent is not making the intermediaries, to comply with the latest guidelines issued by the Government, which has come into force with effect from 26.05.2021. 9. We have heard the learned counsel for the petitioner and perused the material on record. 10. Government of India, Ministry of Information and Technology, have introduced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, by virtue of the powers conferred under Section 87 of the Information Technology Act, 2000. It has got various features, including due diligence, by intermediaries and grievance redressal mechanism, additional due diligence to be observed by significant WP(C): 12585/2021 10 social media intermediary, additional due diligence to be observed by an intermediary in relation to news and current affairs content, notification of other intermediary, code of ethics and procedure and safeguards in relation to digital media, grievance redressal mechanism, self regulating mechanism – level I and level II, oversight mechanism – level III, furnishing of information, disclosure of information and general guidelines for classification of films and other entertainment programmes, including web based serials. 11. Going by the provisions of the Rules, it is explicit that the Rules take care of every situation that are required for properly regulating and controlling the mechanism, with respect to the information and other technology provided by the appropriate platforms. Without producing any supporting materials to substantiate the claim, the petitioner has made vague statements, alleging that Government is not doing anything to control and regulate the platform in question. However, the rules made by the Government prove the fact that the Union Government have taken stock of the situations, and accordingly, adequate provisions are WP(C): 12585/2021 11 made in the rules, to streamline all the aspects, to protect the interests of the nation and laws. Laws are meant to be implemented. Any person aggrieved is entitled to challenge the rules. Merely because the rules are challenged in Delhi High Court, mandamus as prayed for in prayer No. (i) cannot be issued. 12. In prayer No. (ii), petitioner has sought for a direction to the investigating agencies not to rely on the contents of WhatsApp in their functioning, and not to arrest or take into custody any individual, on the basis of WhatsApp contents, which may appear like an act of crime or violation of law. This Court cannot issue such a direction, having regard to the power and decision of the investigating agencies to arrest or not to arrest, which depends upon the facts and circumstances of each case, and it is for the investigating agencies to decide as to how to go about a case and what are all the material evidence required for successful culmination of a prosecution. The significant aspect herein to be considered is that if any such omnibus direction is issued, it would be nothing but, interfering with the statutory framework by which, the criminal justice system functions in the country. WP(C): 12585/2021 12 13. Relief No. (iii) sought for by the petitioner, for a mandamus commanding the Registrar General, High Court of Kerala, to pass appropriate orders to all the Courts of Law under the jurisdiction of the High Court of Kerala that WhatsApp contents shall not be considered at all for any purpose, while conducting trial, inquiry, or any other proceedings, prayer sought for also cannot be granted, since the Registrar General, cannot exercise supervisory powers under Article 227 of the Constitution of India. 14. Moreover, while seeking for such a direction, petitioner is unmindful of the vital and robust facts on which cases are to be decided by the trial courts, by virtue of the powers conferred on them, under various penal statutes, basic and foundational, substantive and procedural laws, such as Indian Penal Code, 1860, Code of Criminal Procedure, 1973, Indian Evidence Act, 1872, Information Technology Act, 2000, and a cart load of other special enactments. 15. Suffice to say, in effect, the petitioner is calling upon this Court to overlook such core and deep seated judicial aspects, in WP(C): 12585/2021 13 order to vindicate the issue of end-to-end encryption, formulated by the technological platform in question. We are afraid that, by seeking for such a relief, petitioner is calling upon this Court, to issue directions, beyond the comprehension of the Constitution and the laws. 16. Appropriate Government, enforcing the rules can demand co-operation of the law enforcing agencies to provide the required data, denial or acceptance, of which, is certainly a cause of action, for the aggrieved. It is too premature to issue a mandamus, as sought for by the petitioner. 17. The petitioner is seeking for omnibus directions, without taking into account the laws made by the Parliament and Legislature of the States. We find no reasons, to issue any writ of prohibition, as sought for by the petitioner. Converging so, we have no hesitation to arrive at the conclusion that petitioner has failed to make out any case of arbitrariness or illegality on the part of the respondents, justifying interference, exercising the power of judicial review conferred WP(C): 12585/2021 14 under Article 226 of the Constitution of India, and therefore, he is not entitled to get any reliefs, as sought for in the writ petition. In the result, this writ petition fails, accordingly dismissed. **Sd/-** **S. MANIKUMAR CHIEF JUSTICE** **Sd/-** **SHAJI P. CHALY JUDGE** Eb ///TRUE COPY/// P. A. TO JUDGE WP(C): 12585/2021 15 ## **APPENDIX OF WP(C) 12585/2021** ## **PETITIONER ANNEXURE** **EXHIBIT P1 A DEMONSTRATION SCREEN RECORDINGS VIDEO OF THE POSSIBLE MANIPULATION ON THE APP.** **EXHIBIT P2 THE PRINTOUT OF A VERY DETAIL ARTICLE ABOUT THE ISSUES OF SERVING OF LEGAL NOTICES AND SUMMONS THROUGH WHATAPP PUBLISHED IN THE CYBER BLOG INDIA DATED 14.09.2020** **EXHIBIT P3 THE PRINTOUT OF THE PRIVACY POLICY OF THE APP AS PUBLISHED IN ITS WEBSITE.**