NEW DELHI: The Centre on Friday submitted before the Supreme Court that data is a reflection of an individual’s personality and is integral to the right to life and personal liberty guaranteed under the Constitution. A regulatory regime on data protection would soon be laid down, it added.
On the face of it, the Central government’s stand in the WhatsApp case appears to be contrary to its categorical statement made concerning basic fundamental rights before the nine-judge Constitution Bench in the case of right to privacy under the Aadhaar scheme, wherein the Centre is vehemently arguing that privacy is not a fundamental right and that it has the right to collect data.
The observation came while the government was making its submission in the WhatsApp privacy policy of 2016 case, which has been challenged on the grounds of it violating the right to privacy and by allegedly sharing data with Facebook. WhatsApp has refuted these allegations, saying all messages, photos and documents were end-to-end encrypted and could not be read even by the company.
Additional Solicitor General P S Narasimha told the five-judge bench: “In the digital age, data is an individual’s personality and is an integral part of our lives. It is indeed under one’s right under Article 21 (right to life and liberty). If any contractual obligation impinges upon that, it will have ramifications.
The bench, headed by Justice Dipak Misra and comprising Justices A K Sikri, Amitava Roy, A M Khanwilkar and M M Shantanagoudar observed that it would have to draw a line on where data could be used and where it could be misused.
Counsel for WhatsApp and Facebook, senior lawyers Kapil Sibal, Sidharth Luthra and Arvind Datar, said that they were willing to give an undertaking before the bench that WhatsApp has not and will not share data with anyone.
The hearing also saw bench warning social media networks not to put arbitrary conditions on the users and said, “We are not dealing with right to privacy here but as a user we have choice and you have that facility, you just cannot impose arbitrary conditions.”
Senior advocate Kapil Sibal, appearing for WhatsApp, told the bench that the mobile application was not at all against a regulatory regime and no user data was shared on the instant messaging platform.
He also suggested to the bench that since a nine-judge bench of the apex court is adjudicating the issue of whether right to privacy is a fundamental right, this matter should be heard after the judgment is pronounced by the larger bench.
The court, after hearing the submissions, fixed the matter for further hearing on September 6 as the nine-judge bench was likely to pronounce its verdict on right to privacy by then.
Senior advocate Harish Salve, appearing for two students Karmanya Singh Sareen and Shreya Sethi who have challenged the WhatsApp privacy policy, argued that their plea was maintainable as they have sought a direction to the centre that regulations should be put in place to deal with the issue of data sharing.
The apex court had in May asked the government to ensure that 160 million Indian subscribers were not “entrapped” in any manner by service providers like WhatsApp.
The petitioners have claimed that after the 2016 privacy policy, personal data was shared and other data were collected by WhatsApp which were used for commercial purposes.
The apex court was hearing the appeal assailing the Delhi high court verdict on the ground that no relief was granted for the data shared by the users after September 25, 2016, which amounted to infringement of the fundamental rights under articles 19 and 21 of the Constitution.