Should Aadhaar be linked to Facebook account? Supreme Court seeks central government's response

The Supreme Court on Tuesday sought a response from the Centre, Google, WhatsApp, Twitter, YouTube and others on Facebook Inc's plea seeking transfer of cases related to linking of social media accounts with Aadhaar, pending in different high courts to the apex court.

The top court agreed to hear the Facebook plea and sought responses of Centre and the social media platforms by September 13.

A bench of Justices Deepak Gupta and Aniruddha Bose said that hearing in two cases pending before the Madras High Court, which seeks linkage of social media profile of users with Aadhaar, should continue but no final orders would be passed.

"Notice be issued to the unserved respondents through e-mail at their e-mail addresses returnable on September 13, 2019. In the meantime, hearing before the Madras High Court may go on but no effective order be passed till further orders," the bench said.

During the hearing, senior advocate Mukul Rohatgi, appearing for Facebook Inc, said that Chennai's Additional Commissioner of Police had told the high court that the social media company has to link the users' profile with Aadhaar and data has to be shared with the probe agencies.

Whether service providers can be asked to share data with probe agencies to help them in criminal investigation needs to be decided by the apex court as it will have a global effect, he said.

Rohatgi said that different High Courts have taken contrary views and for the sake of uniformity it would be better, if the cases are heard at the Supreme Court.

Attorney General K K Venugopal, appearing for the Tamil Nadu government told the bench that the Madras High Court has conducted 18 hearings so far and it should be allowed to conclude the argument and deliver the verdict in the cases.

"The apex court will have a benefit of a comprehensive judgement of the high court in a month's time and it should not stop the high court from delivering the verdict," Venugopal said.

Rohatgi countered the arguments of Venugopal and said that sharing of data with third party involves privacy concerns of users spread across the country and the case of this magnitude should be heard at the apex court.

"The Centre in its affidavit before the high court has said that statutory provisions are being examined for allowing linking of Aadhaar with social media accounts. They have opposed the proceedings before the high court and said that ministry after due consultation and deliberation will take a call on the issue," Rohatgi said.

The bench said the idea is that intermediary should have users details, so that if need arises it could help the probe agencies identify the person who is originator of offensive messages or videos.

Senior advocate Kapil Sibal, appearing for WhatsApp, said the issue largely deals with their platform as it is end-to-end encrypted and Facebook is not that much encrypted.

"Government of India itself has told the High Court that it needs time to examine the issue and therefore there is no point in having piecemeal hearing here and there. The issue cannot be decided by the high court as it is a policy issue," Sibal said.

The bench said, the policy issues can be decided by the high courts and it has jurisdiction to do so but the question is that the current issue has larger ramification.

The top court asked Rohtagi and Sibal to explain what would be the effect of recent amendments in Aadhaar Act by which the 12-digit unique identity number could be shared with the private party for larger public interest.

Rohatgi replied that under the new amendments, Aadhaar could be shared with the third party only for authentication purpose.

Sibal supplemented the arguments of Rohatgi said that WhatsApp was a global platform and effect of any orders of the high court will have the effect globally.

"Due to orders of the High Court, WhatsApp may have to change its privacy policy and therefore the matter should be heard in the Supreme Court," Sibal said.

Venugopal opposed the arguments of Rohatgi and Sibal and said that both Facebook and WhatsApp have accepted the jurisdiction of Madras High Court in dealing with the issue which would help the agencies to check fake news, pornographic content, terror messages as the originator could be traced.

Venugopal referred to the effect of Blue Whale challenge and said that several young lives were lost due to it, as the curator used to give directions to the children to make cuts on their bodies and eventually commit suicide.

"Government of India and several others state government tried to identify the curator but all efforts went in vain. Some said that he was in Russia and some said he was in Germany but no one could identify them. Therefore it is necessary that we get to know who is the originator of the message on social media," Venugopal said.

To this, the bench expressed concern over dangers in the dark web and said although they have not accessed it but what they have heard the things which are going on are far worse.

It said, "It is a conflict between right to privacy and right to govern. We need to create a balance between the two...if they do not have technology to identify the users then we may say don't do it".

Venugopal said that an IIT professor is helping the Madras High Court to identify the originator of the messages.

Facebook Inc had contended that there are four petitions including -- two in Madras High Court, one in Bombay and one in Madhya Pradesh High Courts -- and they contained almost similar prayers.

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