Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Ker) 524

IN THE HIGH COURT OF KERALA AT ERNAKULAM
S.MANIKUMAR, SHAJI P.CHALY, JJ.
OMANAKUTTAN.K.G, S/O. GOPALAN – Appellant
Versus
UNION OF INDIA – Respondent
WP(C) NO. 12585 OF 2021
Decided on : 28-06-2021

Advocates:
Advocate Appeared:
For the Appellant : M.VIVEK, ARUN ASHOK, NEENA JAMES
For the Respondent: SRI. P.VIJAYAKUMAR, SRI. T.A.SHAJI, SRI.P.NARAYANAN, SRI KAPIL SIBAL, SR ADV, SRI. MUKUL ROHATGI, 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, 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

Point of law : 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

Headnote:
Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 – Constitution of India, 1950 – Article 227 – Indian Penal Code, 1860 – Code of Criminal Procedure, 1973 – Indian Evidence Act, 1872 – Information Technology Act, 2000 – Writ Mandamus – Scope of manipulations – Instant public interest writ petition has been filed for reliefs: Issue a writ mandamus or any other appropriate writ, order or direction commanding respondent No. 1, to direct respondent Nos.5 and 6, to comply with Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, in interest of nation – Issue a writ mandamus or any other appropriate writ, order or direction commanding respondents 1 to 3, to pass appropriate orders directing investigating agencies and other lawful authorities having 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 basis of WHATSAPP contents, which may appear like an act of crime or violation of law – Issue a writ mandamus or any other appropriate writ, order or direction commanding respondent No.4, to pass appropriate orders to all Courts of Law under 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 – Issue a writ mandamus or any other appropriate writ or order or direction commanding respondent Nos. 5 and 6, to co-operate with lawful authorities of country and to provide with needed data, so as to aid authorities in maintaining law and order in country, and thus, to sub serve justice system in India – If respondent Nos. 5 and 6 are not willing to co-operate with lawful authorities in India, then issue a writ prohibition or any other appropriate writ, order or direction, commanding 1st respondent to ban/cease operations of WHATSAPP mobile application managed by respondents 5 and 6 in India, in best interest of country
Finding of the court:
It is explicit that Rules take care of every situation that are required for properly regulating and controlling mechanism, with respect to information and other technology provided by appropriate platforms – Without producing any supporting materials to substantiate claim, petitioner has made vague statements, alleging that Government is not doing anything to control and regulate platform in question – However, rules made by Government prove fact that Union Government have taken stock of situations, and accordingly, adequate provisions are made in rules, to streamline all aspects, to protect interests of nation and laws – Laws are meant to be implemented – Any person aggrieved is entitled to challenge rules – Merely because rules are challenged in Delhi High Court, mandamus as prayed for in prayer No. (i) cannot be issued – Petitioner has sought for a direction to investigating agencies not to rely on contents of WhatsApp in their functioning, and not to arrest or take into custody any individual, on basis of WhatsApp contents, which may appear like an act of crime or violation of law – Court cannot issue such a direction, having regard to power and decision of investigating agencies to arrest or not to arrest, which depends upon facts and circumstances of each case, and it is for investigating agencies to decide as to how to go about a case and what are all material evidence required for successful culmination of a prosecution – Significant aspect herein to be considered is that if any such omnibus direction is issued, it would be nothing but, interfering with statutory framework by which, criminal justice system functions in country – Relief No. (iii) sought for by petitioner, for a mandamus commanding Registrar General, High Court of Kerala, to pass appropriate orders to all Courts of Law under jurisdiction of 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 Registrar General, cannot exercise supervisory powers under Article 227 of Constitution of India – Petitioner is unmindful of vital and robust facts on which cases are to be decided by trial courts, by virtue of 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 – Court is afraid that, by seeking for such a relief, petitioner is calling upon this Court, to issue directions, beyond comprehension of Constitution and laws. – Court find no reasons, to issue any writ of prohibition, as sought for by petitioner –
Result : Writ Petition Dismissed

JUDGMENT :

S. Manikumar, 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.

(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 1st 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 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 6th 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 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 enforceme

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