The Centre on Friday told the Supreme Court that the data belonging to an individual was intimate to and an extension of one's personality that resides in Article 21 of the Constitution, guaranteeing protection of life and personal liberty.
Additional Solicitor General PS Narasimha told a five-judge constitution headed by Justice Dipak Misra:
Data is an extension of my personality, footsteps of my life and intimate to me and resides in Article 21. Data is an extension of my personality. Anything that can impinge on data — that is my own — impinges on my right.
Individual's Data Was an Extension One's Personality
Advocating a mechanism to regulate the online messaging service WhatsApp, social networking site Facebook and similar sites, ASG Narasimha told the bench:
It has to be regulated, it will be regulated.
Interestingly, the position taken by the Centre on Friday is in contrast to its stand before a nine-judge constitution bench where it is resisting all the suggestions that right to privacy is a fundamental right residing in Article 21, and other fundamental rights including Article 14 and 19.
Besides Justice Dipak Misra, other judges on the bench are Justice AK Sikri, Justice Amitava Roy, Justice AM Khanwilkar and Justice Mohan M Shantanagoudar.
Taking forward his argument that an individual's data was an extension one's personality, Narasimha told the five-judge constitution:
If data is goods (product) and if it is, then in whom does the proprietary rights vest. Then how can I park it — either by contract or by commercial, or without commercial consideration?
The Centre said this in the course of the hearing of a plea by petitioners Karmanya Singh Sareen and Shreya Sethi, who have challenged the Delhi High Court's 23 September 2016 order, allowing WhatsApp to roll-out its new privacy policy, but stopping it from sharing the data of its users collected up to 25 September 2016 with Facebook or any other related company.
The hearing saw senior counsel Kapil Sibal appearing for WhatsApp and Harish Salve appearing for the petitioners locking horns over the issue of online messaging service accessing the messages — an allegation denied by WhatsApp.
The hearing saw the bench telling WhatsApp "You have a facility, you can't impose arbitrary conditions under the contract for availing those facilities. You can't control and restrict my choice by bringing a contract."
“Why can’t a service provider doing service of such a magnitude be brought under public utility,” said Justice Misra pointing out that the “Data protection is a requirement and the nitty-gritty can’t be done by the government.”
Where Can "Privacy" Be Placed in the Constitution?
The bench said that it was told that WhatsApp was a non-state actor. The hearing was adjourned as it was felt that the matter would involve the question of right to privacy, which is being adjudicated by the nine-judge bench.
The nine-judge bench is examining whether privacy as right was fundamental, and if so, then where it can be placed — Article 14, Article 19 or Article 21, or in the entire chapter on fundamental rights. The bench is also examining the question as to what would happen to Right to Privacy vis-a-vis non-state entities.
The matter will now come up for hearing on 6 September.
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