‘WhatsApp cannot challenge Indian laws’

Poornima Joshi New Delhi | Updated on October 22, 2021

Centre tells Delhi High Court that being a foreign commercial entity, WhatsApp has no right to challenge the Constitutionality of the new IT Rules

The Centre on Friday told the Delhi High Court that WhatsApp is a foreign entity and, as such, has no locus standi to challenge Indian laws.

The Centre maintained this stand in a counter affidavit to WhatsApp’s writ petition against the new Information Technology Intermediary Guidelines and Digital Media Ethics Code), Rules, 2021, claiming it is ultra vires the Constitution on broad grounds of breach of privacy, freedom of speech and expression and the absence of guarantee against arbitrary State action. The foremost ground for the Centre arguing for dismissal of WhatsApp’s petition is that it is a foreign entity.

“The writ jurisdiction of this Hon’ble Court has been invoked by the petitioner which is an out and out foreign commercial entity – it does not have any place of business in India and is engaged in the business of propagating information created by its platform users. The instant writ petition challenging the Constitutionality of any Indian law is, hence, not maintainable at the instance of a foreign commercial entity,” said the Centre.

The Centre said remedies under Article 32 and 226 that pertain to powers of the Supreme Court and the High Courts respectively to issue writs and can be used to challenge constitutionality of Indian laws are not available to WhatsApp as it is a foreign commercial entity.

‘Only for Indian citizens’

“Constitutionality of a provision of law cannot be challenged by a foreign commercial entity on the ground of it being violative of Article 19 rights. The said rights are only available to citizens. Law permits derivative action in cases of companies but the same can only be brought by an Indian citizen who is also a stakeholder in the company and is limited to Article 19(1)(g) rights. The present petition where no derivative rights have been claimed by any citizen is thus not maintainable,” said the Centre.

Published on October 22, 2021

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