Regulatory regime for data protection: Centre to SC

  • July 23, 2017
  • 5:25 am
  • Ayush Singh

The Centre on 22nd July told the Supreme Court that it will come out with a regulatory regime for data protection, asserting that data involved fundamental rights of individuals.

Justice Dipak Misra

This submission was made before a five-judge Constitution bench headed by Justice Dipak Misra which was examining the contentious issue of the 2016 privacy policy of popular messaging platform WhatsApp.

During the arguments, Additional Solicitor General P S Narasimha contended that data of users was “integral” to the Right of Life and Personal Liberty guaranteed under the Constitution.

“Data of user is connected to the personality and it is an integral part of Article 21 (Protection of Life and Personal Liberty of the Constitution). If any contractual obligation impinges upon that, it will have ramifications. We will come out with regulations (on data protection),” he said.

The bench also 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”.

During the hearing, the court said “arbitrary” conditions could not be imposed on the users and though the Centre has said it would come out with a regulatory regime, the issue was how to control it till the time the regulatory measures were put in place.

“We have already said that do not link privacy issue with this. This case can be argued on another platform. I have a choice. You have a facility. When you are giving a facility, you cannot impose arbitrary conditions,” Justice Misra said.

The bench also observed that such platforms cannot impose conditions which violate rights of citizens as choice of the users cannot be “curtailed”.

Kapil Sibal

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, however, told the court that since a nine-judge bench of the apex court is adjudicating the issue whether right to privacy is a fundamental right, this matter should be heard after the judgement 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

Senior advocate Harish Salve, appearing for two students Karmanya Singh Sareen and Shreya Sethi who have challenged the 2016 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.

“Merely because you (WhatsApp) are a service provider, you cannot say that I will open your letter and read it,” he said, adding, “This court has the jurisdiction to hear this matter. Where is the question of maintainability?”.