House asks what’s up: Government overriding of the right to privacy in special circumstances needs parliamentary oversight

GOI, per media reports, will ask WhatsApp to share details of the originator of some deepfakes of Indian politicians. Officials fear circulation of deepfakes can undermine the integrity of the electoral process. The legal basis to ask social media platforms to share the information about the originator is the Information Technology Rules, 2021. Social media platforms such as WhatsApp have challenged the constitutional validity of those parts of the rules that ask them to identify the originator. They argue these provisions run counter to jurisprudence on the right to privacy.

GOI has argued that the constitutional bench of the Supreme Court in 2017, which concluded that the Constitution guarantees a fundamental right to privacy, also placed reasonable restrictions. On the ground, however, IT Rules have been operationalised and Tripura, to give an example, invoked it recently. There are two challenges here. First, the technical aspect of making changes to these apps that allow for traceability of the originator. Second, the question of oversight on governments breaching privacy under some circumstances. The second issue has wide ramifications.

IT Rules open the door to the executive initiating traceability provisions. While some reasons to do so are justified and narrowly tailored such as those in relation to child sex abuse, other grounds such as security of the state are loosely conceptualised. Consequently, we need safeguards to ensure there’s no abuse of power. IT Rules try to provide one such safeguard by stating the emphasis should be on using less intrusive methods to identify the originator of a message deemed in violation of the law. However, that’s not enough.

India, with its rich democratic traditions, needs to bring in parliamentary oversight on executive functions that involve interception or decryption of private messages. Two years back Congress MP Manish Tewari introduced a private member’s bill to provide for parliamentary oversight over intelligence. It’s time the wider issue is taken up seriously as executive powers to set aside fundamental right to privacy need to be counterbalanced by legislative checks. Indeed, this is the norm in other mature democracies. A robust system of checks and balances is essential for a democracy and IT Rules are no exception. An added benefit, for GOI, is that it may face fewer legal challenges on these rules if there’s parliamentary oversight.

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