Retired Supreme Court judge BN Srikrishna has criticised the new information technology rules that require social media platforms with over 50 lakh users to help in identifying the “originator” of messages upon the government’s request. In an interview with The Economic Times that was published on Monday, Srikrishna said the government was “trying to make inroads into the fundamental right of privacy”.

The retired judge, who led the committee that came up with the draft of the Personal Data Protection Bill, said the demand to break privacy protections was not legal unless the Parliament passed a legislation for the same. It has been three years since the draft PDP bill was submitted to the government and is yet to be turned into law.

WhatsApp, which has nearly 40 crore users in India, has sued the government, seeking to block the new IT rules. The messaging giant in a petition before the Delhi High Court, argued that the provision to trace every single message was unconstitutional and against people’s fundamental right to privacy. On May 27, Twitter had also said it was concerned about the “potential threat” to freedom of expression as India’s new social media rules came into effect.

The Centre, however, has said that no fundamental right, including the right to privacy, is absolute and added that it is subject to reasonable restrictions. The government called WhatsApp’s legal challenge “a clear act of defiance”, while asking Twitter to stop beating around the bush and comply with the laws of the land.

Srikrishna said the Modi government’s face-off with social media platforms and attempts made to stifle criticism was an “undeclared emergency” in India. “I still think it is a free country but I am getting more and more doubtful about it,” he told The Economic Times.

He said asking messaging platforms such as WhatsApp to trace problematic messages to its originators can open up unregulated access to private messages of people. “The problem with the government of India is that they always put the cart before the horse and gets into a mess like they did with Aadhaar,” the retired judge said. “They should have had a privacy policy first. Same is the issue here.”

Srikrishna also told the newspaper that he is entitled to say anything because of right to freedom of speech. “Everything I say on social media does not make me a traitor or a person who hates my country,” he added. “If I criticise the government on oxygen shortage, does it make [one] anti-national or a criminal? But if I talk about some terrorist activity, that is actionable. That is the only thing for which they can have access. In order to have that there must be tangible evidence before you can access my telephone. We should have a law which controls it.”

Also read:

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  2. Social media companies need to be regulated – but BJP’s moves are aimed at controlling the narrative

A sweeping set of rules were issued on February 25 to regulate social media companies, streaming and digital news content. The new rules virtually bring these platforms, for the first time, under the ambit of government supervision.

Among other things, the “Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021” regulations require these platforms to appoint chief compliance officers, in order to make sure the rules are followed, nodal officers, to coordinate with law enforcement agencies, and grievance officers.