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. “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,” Additional Solicitor General P.S. Narasimha told a five-judge constitution headed by Justice Dipak Misra. 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.
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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.”
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-avis non-State entities. The matter will now come up for hearing on September 6.