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Karmanya Singh Sareen v. Union of India

Case details and hearing information from the Constitution Bench Pendency Portal.

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Karmanya Singh Sareen v. Union of India

This case will decide whether WhatsApp’s privacy policy violates its users’ right to privacy under Article 21 of the Constitution.

Petitioners Arguments
Writ is maintainable as the relief sought is against the state. It is important that the State regulates providers and intermediaries like WhatsApps as they are quasi-monopolies and in possession of very sensitive information including vast amounts of metadata. Therefore, a regulatory framework to protect such data needs to be introduced. Even though the government is in the process of introducing a law, given the urgency, the Supreme Court can consider laying down guidelines akin to the process followed in Vishakha v. State of Rajasthan . The standards of privacy adopted in India are significantly lower than those adopted in the European Union and therefore the issuance of guidelines is necessary. Entities providing public service must be regulated as they are performing a public duty and therefore manifest state power. A right to privacy against such entities is also actionable. Even private contracts have to be subject to provisions of the Constitution of India including Article 14 , 19 and 21. The option for parties to ‘take it or leave it’ after WhatsApp having amassed a large consumer base amounts to manipulation. The introduction of hidden considerations violates the ideal of informed consent. It is for the same reason also unconscionable.
Responders Arguments
The matter should not have been referred to the Constitutional Bench before framing the questions for the referral. Since a regulatory regime in tune of a data protection law has to be introduced, the judiciary should let the legislature formulate the law and not intervene. Given that the introduction of a law is underway the judiciary should defer judgment to the legislature and uphold the idea of separation of powers. WhatsApp does not share data such as voice and messages, so no part of the content which is exchanged between two individuals is ever revealed to a third party. Therefore, the privacy policy is neither unconscionable nor unacceptable. Parties are consenting to disclosure at every stage. Presently, no data has been shared by WhatsApp to Facebook or any other third party and therefore if any there is a potential of misuse of data and not a misuse of data. The court should only intervene in cases where there is a misuse and injury has been caused, not on account of there being a potential. The sharing of data by WhatsApp to Facebook is compliant with all laws in the country.
Last Listed On
2023-04-11
Start Date
2017-04-05
Card Stage Date
2023-05-11
Review Petition No
SLP (C) No. 804/2017
Case Status
Pending
Bench Status
To be reconstituted
Subject Matter
Constitution
Pendency
9 years, 2 months, 25 days

5 Judge Bench

Awaiting bench reconstitution

Consider As Stage Of Pendency
true

Date of institution of case

Date of reference to 5 Judge Bench

In 2010 , WhatsApp, an instant messaging service was launched in India. As per policy, users have to agree to its terms of service before commencing use. In 2014, WhatsApp was bought by Facebook , and the management committed that there would be no changes in the terms of service. In August 2016, however, WhatsApp changed some terms of its privacy policy which allowed it to share individual’s personal data with Facebook for a better advertisement experience . Such information includes phone numbers and device information. On 26-08-2016, two WhatsApp users filed a Public Interest Litigation before the Delhi High Court challenging the policy. On 23-09-2016, the Delhi High Court ruled in favour of the messaging application. However, recognising that questions on the right to privacy were still pending before the Supreme Court in the case of K.S. Puttaswamy v. Union of India , it mandated that in the event that a person opts-out or deletes their account, all information on their servers including those shared with Facebook will have to be deleted. On 17-12-2016, dissatisfied with the High Court’s order, the petitioners, current users of WhatsApp filed a Special Leave Petition against the Delhi High Court order. On 05-04-2017, the division bench referred the matter to a Constitutional Bench. On 31-07-2017, the Ministry of Electronics and Information Technology issued an Office Memorandum stating that the government was setting up a Committee of Experts, headed by retired Supreme Court Justice B.N. Srikrishna to deliberate on a data protection framework for India. On 11-04-2023 , the government submitted that the Digital Personal Data Protection Bill, 2022 which addressed the issues was going to be tabled during the Monsoon Session. In light of that, the Constitution Bench adjourned the matter, and passed an order for reconstitution of the bench.

Does WhatsApp’s privacy policy violate its user’s right to privacy under Article 21 ? Should WhatsApp be obligated to provide its users the ‘opt out’ i.e. option to not share data under the terms of its privacy policy? Does the manner in which WhatsApp has sought consent from its users, especially those who cannot read or understand the terms of the policy, amount to deception or manipulation, leading to an unconscionable practice?

Section 79 of the Information Technology Act, 2000

The Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011

Article 21

Referral order to the constitution bench does not provide any reasoning. However, the Constitution Bench decided that the matter was to be kept pending since the legislature is in the process of introducing a new law to regulate data protection in India.

Karmanya Singh Sareen v. Union of India [2016 SCC OnLine Del 5334]

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