The Supreme Court today asked the government to ensure that 160 million Indian subscribers are not "entrapped" in any manner by service providers like WhatsApp, which is providing free services to its users.
"State has a duty to protect the citizenry rights. Since service providers like WhatsApp and Facebook say we are giving it free, the state has to ensure that 160 million citizens who are using the service, are not entrapped in it," a five-judge Constitution Bench headed by Justice Dipak Misra said.
"The issue is that you (WhatsApp) have framed a policy inviting customers for the purpose of availing the service. In that sphere, can you impose any condition which violates any part of the Constitution," the bench asked WhatsApp, which was acquired by Facebook in 2014.
"Why has the entire world, and a country like Germany, reacted to it? If it is such a laudable project, why are they reacting," the bench, also comprising Justices A K Sikri, Amitava Roy, A M Khanwilkar and M M Shantanagoudar, asked and observed, "we undertand the concept of charity".
Senior advocate K K Venugopal, representing Facebook, told the bench that they were not sharing any sensitive or personal data and since India was shifting to digitisation, the service provided by WhatsApp was beneficial as it was end-to-end encrypted.
"There are privacy laws in those countries. It is a matter which should be left to the government here," he said.
Meanwhile, the Centre told the apex court, which would now hear the matter on July 21, that they were in the process of making a regulatory regime to deal with the issue.
"At the outset, the central government is committed to freedom of choice and right to privacy of citizens. This is non-negotiable and we are committed to this," Additional Solicitor General (ASG) Tushar Mehta said, adding, "We are already in the process of doing it (regulatory regime)."
"We are in the process of making either a statutory rule or executive guidelines, which would be binding in nature, on data protection," he told the bench.
During the day-long hearing, Venugopal said there was no legal framework at present to deal with the issue but most of the prayers sought by the petitioners were covered under the 2011 rules of the Information Technology Act.
"These rules have the framework, an issue which has been raised. My submission is that the petition is not maintainable," he said, adding that it was a matter of policy.
He also said they were complying with the provisions of the rules which were in place in India.
Senior advocate K V Vishwanathan, appearing for Internet Freedom Foundation (IFF), an intervenor in the case, said that though these rules would apply to WhatsApp and Facebook, but the entire issue, including the aspect of metadata, pending before the apex court, was not covered under it.
"We find that the rules prescribe that there has to be a consent if you are sharing sensitive personal data. Suppose the consent is not taken effectively, what is the role of the constitutional court," the bench said and asked Venugopal,"are you collecting any sensitive personal data at all?".
Responding to the query, the senior counsel said they were not collecting any personal or sensitive data and only phone numbers, device ID, registration details and the last seen status were shared.
"These are totally non-sensitive and neutral data and no consent is required for it," he said while refuting the claims of the petitioner that they produce or use metadata.
Advocate Madhavi Divan, appearing for two students
To this, the bench said "the issue would be whether they are really collating data. We are not concerned with their income".
Senior counsel Siddharth Luthra, appearing for the Indian arm of Facebook, told the bench that no one can access any messages the moment it is end-to-end encrypted.
The bench, however, asked, "can you violate Indian laws in the name of expanded operation".
During the hearing, the bench asked WhatsApp's counsel, "have you given any kind of undertaking before the European Union that you will not share data with Facebook?"
The lawyer said there is no such undertaking given by them but there is data protection authority in European countries.
To this, the bench shot back, "Forget that, we are the data protection authority here. You must maintain a world standard."
"We can protect our citizens. It is our duty, a constitutional obligation. WhatsApp and Facebook has business interest. Here it is about citizenry interests. I do not think anybody would like to share his data in entirety," the bench said, indicating that they may also pass an interim order in the matter till the time the Centre comes out with regulation.
However, Venugopal said they are prepared to give an affidavit that not even a single message is read by anybody else while also raking up the issue of right to privacy.
Divan countered the submissions and claimed that it was like "economic espionage".
During the hearing, the bench said, "we are not sitting in the vacation to pass an interim order. We are sitting so that we can pass a judgement as soon as possible."
"You (WhatsApp) say it is in the realm of a contract. Can you say either sign it by agreeing to it or leave it. If you say so, what the court can do," it said.
Venugopal, however, maintained that there was a regulation control and the writ petition filed before the Delhi High Court earlier was not maintainable.
On the issue of maintainablity, the Centre said they were committed to ensure freedom of choice of the subscribers.
Arguing on the aspect of maintainablity, Divan said the instant messaging platform was providing service by using public property and they have a public duty.
The bench, however, asked how these service providers operate and whether they use spectrum.
Divan said they do not use spectrum and the service is provided through the telecom service providers who have the licence.
She also referred to action taken on WhatsApp by other countries like in Europe, Italy and Germany.
The apex court is hearing the appeal assailing the Delhi High Court verdict on the ground that no relief was granted for the data shared by users after September 25, 2016 which amounted to infringement of fundamental rights under Articles 19 and 21 of the Constitution.
It had on January 16 sought the responses from the Centre and Telecom Regulatory Authority of India on the plea that privacy of over 157 million Indians has been infringed by social networking sites - WhatsApp and Facebook - for alleged commercial use of personal communication.