The government’s push is seen more for “political gain”, says MM Sharma, the head of competition law at Vaish Associates in New Delhi.
The government’s counsel, solicitor general Tushar Mehta, argued before the Supreme Court that, regardless of the non-existence of a privacy law in India, privacy is a fundamental right protected under the Indian constitution. The three-member bench of Supreme Court judges called out that while the US tech giant may have huge coffers, people valued their privacy more than money. The court also asked WhatsApp to give an assurance on oath that users’ personal data is not being shared with any third parties.
The government may be able to convince the Supreme Court by showing their intention through the provisions of the Personal Data Protection Bill, but this is not an easy task. Not when WhatsApp and Facebook have a reasonable defence in the fact that India does not have a data privacy law yet, unlike the EU’s General Data Protection Regulation (GDPR), says Sharma.
Without regulations being in place, it is uncertain whether the top court will pass any order considering that the initial case (Karmanya Singh Sareen v Union of India) has been going on for years, Deeksha Manchanda, a Delhi-based partner at Chandhiok & Mahajan points out.
Shyam Divan, the senior advocate representing the petitioners before the Supreme Court, tells India Business Law Journal that since the Supreme Court will recess for the summer break on 13 May 2021, there is likely to be an effective interim ruling on the issues by then.
“The right to privacy exists in the constitution, but legislation is required to be laid down by the government to define the contours of the right,” says Manchanda.
If the final Personal Data Protection Bill is in line with Europe’s data protection law, then WhatsApp will need to revise its policy for India, adds Manchanda. Until there are regulations on how data should be shared or controlled, or what rights data fiduciaries should be given are required, there is not much that the Supreme Court can do for now.
The Business Law Digest is written by Freny Patel.