Arguments Summary Day 2: September 6, 2017.
Today, a 5-Judge Bench, consisting of Justices Dipak Misra, A. K Sikri, Amitava Roy, A. M. Khanvilkar and M. M. Shantagoudar heard arguments about the data protection framework of WhatsApp. In the previous hearing, questions were raised about the maintainability of the writ and the applicability of fundamental rights to non-state actors.
Ms. Madhavi Divan, appearing for the Petitioners, began by noting that the right to privacy applied even against non state actors. Mr. Tushar Mehta, Additional Solicitor General, interjected to note that the Committee of Experts to deliberate on a data protection framework for India, headed by Justice B. N. Srikrishna, former Judge of the Supreme Court, had been constituted. A law could be enacted after this committee submitted its report.
Mr. K. V. Vishwanathan, arguing for Internet Freedom Foundation welcomed the recognition of informational privacy by the 9 judge bench. He quoted paragraph 174 of Justice Chandrachud’s opinion, which discusses metadata and protection against non-State actors. Referring to the Visakha judgement, he urged the Court to lay down guidelines until a law is enacted.
Justice A. K. Sikri pointed out that the Visakha judgement was due to legislative inaction, but given that B. N. Srikrishna Committee had been constituted, this matter would be dealt by experts rather than the Court.
Mr. Vishwanathan and Ms. Divan insisted that the Court pass an interim injunction restraining the respondents from sharing data with third parties.
The bench has asked WhatsApp and Facebook to file affidavits within four weeks explaining what data is shared by them and with whom. Thereafter, the Court will hear arguments on whether interim directions are required to be passed.
The matter has not been listed for the next hearing as of date.
(This post relies on contributions from Ms. Nidhi Khanna.)