During the course of hearings before the Supreme Court in Karmanya Singh Sareen & Anr. v. Union of India & Ors. [S.L.P. (C) No. 804 of 2017], IFF has advanced arguments about the need to preserve privacy of meta data even if the actual content of messages is encrypted. Meta data means data which describes or gives information about other data, and it includes information like which users do you chat with, how frequently do you chat with a user, which groups you are a member of etc. In many cases, meta data by itself can reveal very sensitive information about a person’s life. For instance, consider conversations with sexual and reproductive health services which now provide abortion related counselling via WhatsApp.
Final Arguments before SC sought to be delayed by WhatsApp
On January 31, 2023, the Respondents again sought an adjournment on the basis that a Digital Personal Data Protection Bill, 2022 (DPDPB 2022) has been prepared. The Ld. Solicitor-General of India stated that the present Digital Personal Data Protection Bill, 2022 (DPDPB 2022) will be placed before the Parliament in the 2023 budget session, and may be enacted by the time the session ends in April.
On February 1, 2023, the Supreme Court held that final arguments may proceed despite the existence of the proposed DPDPB 2022. However, counsel for Respondents stated that they may not be available for arguments on certain dates, owing to a schedule clash with matters placed before other Constitution Benches in the month of February 2023. Following which, the Supreme Court has agreed to defer hearing the matter until April 11, 2023.
In the interim, WhatsApp users may continue to use WhatsApp without accepting the 2021 policy
This was on the basis of a letter dated May 22, 2021, where WhatsApp had provided an undertaking to the government stating the following:
Accordingly, the Hon’ble Supreme Court was pleased to order that WhatsApp will abide by the undertaking provided in this letter. The Hon’ble Supreme Court also extended the timeline for this undertaking until the next date of hearing, instead of the passing of a data protection law. The Court also directed WhatsApp to cause publicity for this aspect for the benefit of WhatsApp’s users by taking out full page advertisements in five national newspapers on at least two occasions, where the advertisement must necessarily incorporate and communicate this stand taken.
We are deeply grateful for Mr. K. V. Vishwanathan, Sr. Adv. for appearing on behalf of IFF and advancing important constitutional conversations before the Constitution Bench of the Supreme Court of India. Mr. Vishwanathan was assisted by IFF’s legal team Gautam Bhatia, Vrinda Bhandari, Abhinav Sekhri, Tanmay Singh, Ramya Dronamraju and Gayatri Malhotra.
We will be prepared for final hearings on the next date of hearing, i.e. April 11, 2023, and will keep you updated.
- Video Recording of the Proceedings dated February 1, 2023 (link)