Unfolding the idea of privacy and India’s recent social media intermediary rules - The Daily Guardian
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Unfolding the idea of privacy and India’s recent social media intermediary rules

Pulkit Mogra



As a layman’s idea of privacy in the past decades, it’s been one of the prevalent opinions that unless you are doing something “wrong” in the eyes of the law, there can be no actual harm that would arise from the surveillance. However, privacy has taken a turn since the events such as the Cambridge Analytica scandal, where it was alleged that Facebook’s likes were used to manipulate voting of the United States. Furthermore, Yahoo’s data breach across 4 Years that resulted in a humongous $117.5 Million settlement. Since then, the definition of consumer’s privacy has taken a turn towards its evolution.

In 2009, the CEO of Google, Mr Erick Smith, had a supporting statement on this view that, if you are doing something you don’t want other people to know, then you should not be doing it in the first place itself. But after a few months, when CNET published articles about the personal lives of google employees, google issued a note where it stopped its employees from conversing with CNET. In 2010, the CEO of Facebook, Mr Mark Zuckerberg, pronounced that privacy is no longer a social norm in an interview. However, post that Facebook has been a leading group engaged in developing products that have integrated privacy by design to protect itself from privacy breaches. Privacy by design in simple terms integrates the values of privacy right across through the entire engineering process for a product.

There exists a school of thought that modern society humans have compromised the privacy notions of the past. We do publish information online through posts, tags, comments, etc. Still, even then, there may be some data that one may not be comfortable publishing, keeping aside whether any wrong or a right act has been committed under the eyes of the law. It’s has been a psychological study that human behaviour changes when subjected to surveillance, be it at the professional space or public space. Ideas of naming, blaming, and shaming has been a powerful motivator for people to act in a particular way. Jeremy Bentham conducted this study in the 18th century through an architectural design of a prison called Panopticon. To keep a check on inmate’s behaviour, he built a tower in the centre of the institution. This resulted in a drastic change in behaviour as the prisoners were continuously conscious of rules and obedience. Michel Foucault, building upon a similar model, implemented the system into the public institutions to monitor a segment of the population. But it was seen that it crippled down the human freedom to act and a room for dissent as an effect of the surveillance. This is where the importance of privacy strikes where it starts affecting a person’s ability to act in a manner of their own choice.

In 2018, there was the tracking of 10,000 call records by the Uttar Pradesh government to catch two culprits that were later on arrested for dumping potatoes outside the houses of government officials. Similarly, in Andhra Pradesh, a govt website leaked personal data of its citizen about their use of medicines. The questions come in what makes a purpose legitimate for the surveillance over the privacy of the citizens.

In the past couple of months, India has witnessed headlines where WhatsApp has challenged the recent notification under IT Act. Law enforcement authorities have sent notices to Twitter for non-compliance with the rules. Companies claim the new media code will compel it to “break privacy protections” while policymakers have answered it as the right to privacy is “fundamental, but not absolute”.

Through the case of Justice K.S. Puttaswamy (Retd.) vs Union of India, the supreme court proclaimed privacy as a fundamental right for the citizens of India, though it doesn’t grant it as an absolute right. The question then revolves around what amounts to the legitimate state purpose and the proportional allowance for the investigation that may lead to infringement of privacy.

India has not been the only country that has demanded traceability. In October 2020, India, U.K. Japan and the U.S signed a deal to share the information with governments for the issues related to national security and terrorism, even if that leads to de-encryption of data.

With the recent Information Technology (Guidelines for intermediaries and Digital Media Ethics Code) Rules, 2021 (hereinafter mentioned as IT Rules), issued under the Information Technology (IT) Act, the debates on infringement of privacy have tapped into new horizons. Globally the governments have been trying to carve out solutions for the growing concerns of online defamation and harassment for half a decade. And de-encryption laws have been one such solution that policymakers have tapped into. De-encryption debate hasn’t been a new term since the onset of encryption technology. With Australia’s enactment of anti-encryption laws, the movement has only gained a boost for the rest of the nations to follow in similar footsteps.

The new IT rules have narrowed down the scope of the safe harbour provisions, which were typically enjoyed under the IT act by the intermediaries. The intermediaries were not liable before for any content uploaded by the users on the internet, with a provision for a reporting mechanism for harmful content. However, rules 4(4) ask the companies to develop an automation system to identify and take down harmful content. But at the same time, the question comes in, who defines what is meant by the “harmful content” and will also include dissenting opinions towards policies.

A concern of social media and messaging apps has been that to meet the demands of this legislation; it would require them to break end to end encryptions. A technology that assures the privacy of communication between the two users. “Security” and “Privacy” has been a selling point for the social media and messaging platform. The companies doubt that this policy would firstly restrict the effectiveness of communication amongst the users, knowing the communication would be ought to surveillance if any doubts arise. Secondly, the tech giants also fear facing future challenges and competition from blockchain-based technology applications that would guarantee better privacy and can suddenly grapple up the existing market under the flag of better privacy protection.

Applications like “Session” by Loki Foundation that have introduced blockchain technology in their application systems have taken a further step in their quest for unrivalled privacy for their users. This technology neither requires a phone number nor saves an IP address. Bringing in additional challenges both of the existing Tech App giants to invest in their innovation labs and at the same time for governments that would only bring in newer headaches for policymakers. Hence, the fear is, will such legislation make the technology go obsolete way before their time.


Rule 4 (2) of the new IT Rules lays down a ground for tracing the first originator of any message that is under investigation. With the messaging platform already powered with encryption technology, 4(2) would threaten end-to-end encryption. Hence it won’t be incorrect to argue that it threatens the right to privacy and the freedom of speech and expression. We are now reaching up to a similar stage of how Jeremy Bentham’s panopticon redefined a human’s ability to act under surveillance. Hence, it won’t be wrong to ask the question at this point that how much in future it may affect our right to dissent.

Several questions have yet left been unanswered, such as how the legislation would define the meaning of “the first originator”. Does the first originator have to be an Indian citizen, or should the message have first originated under India’s territory? Would that also mean that the applications would require to track the location of the users as well?

The tech giants are concerned with Rule 4(2) because the algorithms these apps are using are global algorithms and haven’t been made as a country-specific one. Hence, creating a backdoor entry for one also creates a back door entry for the rest of the world. And the world isn’t comprised of only governments and law enforcement agencies; it includes the ones that would illegally break the back doors. There is no question on the fact that fundamental rights are subjected to restrictions, as has also been reiterated by our I.T Minister. But there also requires a cost-benefit analysis for the same and at what we may end up trading off for.

Another grey area that legislation has left is on surveillance, whether the legislation mandates retrospective or prospective surveillance. Retrospective would bring in numerous debatable points about the feasibility of the technology and social justice, where people would have communicated certain things when they were not aware that they might be subjected to surveillance in the future.

Lastly, there is still lacks the clarity about the internationalization of this legislation. The world doesn’t function on the same set of policies. How do we prepare ourselves with cases where the “WhatsApp India” ends up tracing an EU citizen’s messages that have been granted protection under the GDPR norms of the European Union while tracing of the first originator? There are complex challenges ahead for compliance on such grounds, especially for the tech giants when legislation such as GDPR has prescribed a fine of 4% global turnover over the data breach. At the same time market of India provides a considerable share of the user that can’t be ignored. There is no doubt that as a nation, we need to bring down the cases of fake news, hate speech, child pornography etc., and such issues must be addressed at utmost priority but, is surveillance and de-encryption are the only mechanisms for it, is something to brainstorm upon for the policymakers.

This article has been written by Pulkit Mogra, Assistant Professor at University of Petroleum and Energy Studies, Dehradun and is currently pursuing his Ph.D from University of Ottawa, Canada.

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Legally Speaking




The Gauhati High Court in the case Jugitawali Pawe v State of Assam and 15 ors observed and quashed a resolution expressing no-confidence in the petitioner – the President of a Gram Panchayat, as a result of which she as removed from office. It was stated that it is as per the citing no compliance with Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995.

It was preferred by the petitioner to the materials available on record to argue that one of the members of the Gaon Panchayat, the respondent. The respondent voted against the petitioner and had given birth to her third child the previous year. Moreover, by virtue of Section 111(2)(a) of the Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995, the petitioner stood automatically disqualified on the date of voting. Following, which her vote was taken by passing No-confidence motion.

It was prayed by the petitioner in the plea for setting aside the impugned resolution and for issuance of a direction to restore his client back in the office. Thereafter, to initiate fresh proceedings, liberty should be granted to the respondent, following the due process.

It was agreed by the Counsel representing for the respondent that the said member of the panchayat had been disqualified but retained on the ground that the disqualification would have no bearing on the petitioner’s case, as the impugned resolution was passed before the declaration of petitioner disqualification.

In the present case, It was noticed by Justice Suman Shyam the member had voted against the petitioner and without her vote. The petitioner would not have been ousted from office. Justice Shyam also found no dispute about the fact that the member had incurred disqualification under the law prior the date of adoption of the impugned resolution. Justice Shyam found it unnecessary to delve into other aspects of the matter which includes the procedural formalities for declaring the member a disqualified candidate.

It is observed that the impugned resolution was declared to be vitiated and liable to be set aside. Further, the Court restored the petitioner to the office of the President of the Bongalmara Gaon Panchayat with immediate effect and it was stated by the court that the order will not stand in the way should the authorities or any member of the Gaon Panchayat propose a fresh motion of “no-confidence” against the petitioner and the due process of law needs to be followed.

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Halt DDA’s demolition action against jhuggis in Nizamuddin’s Gyaspur area, orders Delhi High Court

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board, the residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.



plea in Delhi High Court seeking repatriation of 56 pregnant nurses

The Delhi High Court in the case Manoj Gupta & Ors. v. DDA & Ors observed and has ordered status quo on the Delhi Development Authority’s proposal to demolish jhuggi clusters in city’s Gyaspur area in Hazrat Nizamuddin. The vacation bench comprising of Justice Neena Bansal Krishna observed in the petition filled by the residents and the court granted an interim relief.

It was ordered by the court status quo till July 11, the next date of hearing.

The bench orally remarked that a ten-day delay in demolition won’t make a difference but if today it is demolished and later, we come to know that they were entitled, who’s going to… the bench will consider it on July 11, 2022 but in the Meanwhile, some protections are entitled them. Adding this, Status quo be maintained. If since 1995, they have been there, heavens won’t come down if for 10 more days they are protected.

In the plea the petitioner stated that the T-Huts settlement in the area, which was stated by the authorities to vacate. It has been in existence for almost two decades and compromise of 32 jhuggis or households.

In the plea it was alleged that the bulldozers have been parked around the camp and a DDA official has orally asked them to vacate the area and it is noted that till date no proper notice have been sent to them nor has DDA conducted any survey of the area.

Furthermore, the DDA did not provide any alternate arrangement for their rehabilitation which resulted in extreme distress among the residents.

Moreover, it was admitted by the petitioner that the land in question belongs to DDA and they may seek that status-quo to be maintained at the site. It was urged that the residents should not be physically dispose or evicted from the demolition site until the survey is conducted and rehabilitation is provided to the residents as per the DUSIB policy of 2015.

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board. The residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.

It is observed that in the case Ajay Maken v. Union of India, Reliance is placed on the Supreme Court decision and the High Court decision in the case Sudama Singh & Ors. v. Government of Delhi & Anr, it was held in the case that that removal of jhuggis without ensuring relocation would amount of gross violation of Fundamental Rights under Article 21 of the Constitution. Further, it was held that the agencies conducting the demolitions ought to conduct survey before undertaking any demolition.

It is submitted that these observations would apply across the board, in the entire NCT of Delhi.

Advocates Vrinda Bhandari, Shiyaz Razaq, Kaoliangpou Kamei, Jepi Y Chisho and Paul Kumar Kalai, represented the petitioner.

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The High Court of Telangana in the case M/s S. Square Infra v. Garneni Chalapathi Rao observed and held that the place of residence of the arbitrator would not determine the seat of arbitration.

The Single bench comprising of Justice P. Sree Sudha observed and held that merely because an arbitrator residing in Hyderabad has been appointed, it does not mean that only the Courts at Hyderabad would have the jurisdiction to decide all the matters arising out of arbitration agreement.

Facts of the Case:

In the present case, after the dispute arouse between the parties, the respondent sent a letter to the petitioner for nomination an arbitrator who is residing in Hyderabad. To its said notice, petitioner replied and declined the appointment of the arbitrator for the reason that there was no dispute which required the appointment of an arbitrator.

A suit was filled by the respondent before the VII Additional District Judge Sangareddy, seeking for relief of permanent injunction. An application was filled by the petitioner under Section 8 of the Arbitration & Conciliation Act and the parties referred to the arbitration.

An application was filled by the respondent under section 9 of the Arbitration & Conciliation Act before the Principal District Judge, Sangareddy, Subsequently, an application was filled by the petitioner for transferring the application from the Court at Sangareddy to Court at Hyderabad.

Contentions made by Parties:

On the following grounds, the petitioner sought the transfer of application.

An arbitrator residing in Hyderabad was nominated to respondent. However, only the courts in Hyderabad would have the jurisdiction to decide all the matters arising out of the arbitration.

It was stated that the nomination of an arbitrator residing in Hyderabad amounted to designating Hyderabad as the Seat of Arbitration.

On the following grounds, the respondent countered the submissions of the petitioner:

An application was filled by the petitioner under Section 8 of the A&C Act before the Court at Sangareddy. However, in terms of Section 42 of the A&C Act, only the court at Sangareddy would have the jurisdiction to decide all the matters arising out of arbitration.

Court Analysis:

The Court held that the seat of arbitration would not be decide by the place of residence of the arbitrator.

The argument of the petitioner was rejected by the court that since the respondent had initially nominated an arbitrator residing in Hyderabad, the Hyderabad Court would have the jurisdiction.

The court stated that merely because a party has nominated an arbitrator who resides in Hyderabad, the same would not designate Hyderabad as the Seat of arbitration in absence of any designation of the seat under the arbitration agreement.

It was further stated by the court that the application filled by the petitioner filled under Section 8 application before the Court at Sangareddy consequent to which the parties were referred to arbitration. Therefore, the Court would have the jurisdiction, in terms of Section 42 of the A&C Act.

The Transfer petition was dismissed by the Court.

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

The Delhi High Court in the case Shubham Thakral Vs ITO, the Delhi bench comprising of Justice Manmohan and Justice Manmeet Pritam Singh Arora observed and remanded the matter back to the assessing officer as just 3 days’ time was granted to respond to the income tax notice.

In the present case, the petitioner/assessee assailed the notice under Section 148A (b) of the Income Tax Act, 1961 and the order passed under Section 148A (d) for the Assessment Year 2018–19.

It was contended by the assessee that only three days’ time was granted to the assessee to respond, as against the mandatory statutory period of at least seven days. However, despite of the fact that the annexure attached to the notice gave the petitioner eight days to respond, the e-filing submission portal was closed earlier, in violation of Section 148A (b) of the Income Tax Act.

Furthermore, the petitioner relied on the decision of Delhi High Court, in the case of Shri Sai Co-operative Thrift and Credit Society Ltd versus ITO, the Delhi High Court in the case held that under Section 148A (b), a minimum time of seven days has to be granted to the assessee to file its reply to the show cause notice.

No objections were raised by the department/respondent to the matter being returned to the Assessing Officer for a fresh decision in accordance with the law. Accordingly, the court set aside the order passed under Section 148A (d) for the Assessment Year 2018-19. The Assessing officer was directed by the court to pass a fresh reasoned order in accordance with the law after considering the reply of the petitioner, which was directed to be filed within a week.

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The Allahabad High Court in the case Malhan and 17 Others Vs. State Of U.P. And Another observed and stated that an advocate should be given such a piece of advice when there is no error apparent on the face of the record nor was there any reason why the matter be re-agitated it was finally decided.

The bench comprising of Justice Dr. Kaushal Jayendra Thaker and Justice Vivek Varma observed while dealing with the civil review application wherein the bench observed the concerned advised his client to make a chance by filling the instant review application after a period of six year.

In the present case, a civil review petition was filled along with the application under section 5 of the Limitation Act, 1963., the application was filled for seeking condonation of delay in filling the application, the application was filled with a delay of six years i.e., 1900 days.

It was stated by the applicant that the review application could not be filled due to the blockage of public transportation on account of the COVID-19 guidelines.

Moreover, the court observed that the appeals were disposed of by the Apex Court in the year 2016 and only in 2020-2021, the pandemic struck India and furthermore, it cannot be said that due to the COVID guidelines the public transportation was blocked and however, the applicant could not come to Allahabad Court to file review.

Further, it was stated that the court asked the counsel for the review applicants to explain the delay in filling the review application, to which the council gave a strange reply that the counsel had advised the clients that they must take a chance by filling this review application after a period of six years.

Following this, the Court observed:

The court noted that an advocate should not give such an advice when there is no error apparent on the face of record nor was there any other reason that when the matter was finally decided, why the matter be re-agitated.

It was stated that the court has no reason to condone the delay of six years as the same was not explained as to why this review application is filed after such an inordinate delay.

The Court opined that the lapse in approaching the court within the time is understandable but a total inaction for long period of delay without any explanation whatsoever and that too in absence of showing any sincere attempt on the part of suiter, this would add to his negligence and the relevant factor going against him.

The court observed that careless and reckless is shown by the review applicant in approaching the court and due to the condemnation of delay in the application with a token cost of Rs.10,000/, the court dismissed the application.

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The Supreme Court in the case Sanjay versus The State (NCT of Delhi) & ANR observed and stated that in the case where personal liberty is involved, the court is expected to pass orders at the earliest while taking into account the merits of the matter in one way or other. Further, the top court observed that posting of an application for anticipatory bail after a couple of months cannot be appreciated by the court.

The bench comprising of Justice C. T. Ravikumar and the Justice Sudhanshu Dhulia was hearing a June 2 SLP against the Delhi High Court in a petition filed under section 420, 467, 468, 471, 120-B, 34 of the Indian Penal Code, 1860 for seeking anticipatory bail in a 2022 FIR, a notice is issued. It was stated that the learned APP for the state is present and accepts the notice and seeks time to file status report. The High Court in the impugned order stated that Let the status report be filed by the state prior to the next date with an advance copy to the learned counsel for the petitioner. The matter is to be list on 31.08.2022.

It was noted by the bench comprising of Justice Ravikumar and the Justice Dhulia that in the captioned Special Leave Petition, the grievance of the petitioner is that the application for anticipatory bail moved by the petitioner, being Crl. M.A. No. 11480 of 2022 in Bail Application No. 1751 of 2022 without granting any interim protection, was posted to 31.08.2022. on 24.05.2022, the bail application was moved on.

However, the bench asserted that the bench is of the considered view that in a matter involving personal liberty, the Court is expected to to pass orders at the earliest while taking into account the merits of the matter in one way or other.

It was declared by the bench that at any rate posting an application for anticipatory bail after a couple of months cannot be appreciated by the court.

Further, the bench requested to the High Court to dispose off the application for anticipatory bail on its own merits and in accordance with law expeditiously, preferably within a period of three weeks after reopening of the Court. Adding to it, the bench stated that if the main application could not be disposed off, for any reason, within the stipulated time, relief sought for in the interlocutory and on and on its own merits, the application shall be considered.

While disposing of the SLP, the bench directed in its order that we grant interim protection from arrest to the petitioner herein, Till such time.

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