On Tuesday, India’s Supreme Court transformed a long-running dispute over WhatsApp’s privacy policy into a broader confrontation over constitutional authority and corporate power. Hearing multiple appeals related to WhatsApp’s 2021 data-sharing policy, a bench led by Chief Justice Surya Kant issued a stark warning to Meta, the US-based parent company: compliance with India’s constitutional framework was non-negotiable.
“You can’t play with the privacy of our country,” the Chief Justice said, rejecting arguments that user consent and encryption safeguards were sufficient. “If you can’t follow our Constitution, then leave India. We will not allow you to share a single digit of our data.”
The remarks came amid concerns that WhatsApp’s policy—mandating data-sharing with Meta companies—placed millions of Indian users in a position where consent was effectively coerced rather than freely given.
Consent, Complexity, and the Ordinary User
At the heart of the case is a fundamental question: whether informed consent can meaningfully exist in a digital ecosystem defined by technical complexity and asymmetry of power. The court appeared unconvinced by Meta’s claim that users had willingly agreed to the policy.
“The language of your policy is such that an ordinary user cannot understand it,” the bench observed, pointing to India’s vast population of first-time internet users, street vendors, and rural citizens. “What kind of choice are you giving them?”
The judges likened the situation to a forced binary—accept the policy or lose access to a critical communication service—describing it as a “lion and lamb” choice. Such framing, the court suggested, undermines the very premise of voluntary consent that global tech firms routinely invoke.
Commercial Exploitation and Market Power
The hearing also revisited findings by India’s competition regulator, which has accused WhatsApp and Meta of abusing their dominant position in the messaging market. Solicitor General Tushar Mehta, appearing for the authorities, argued that even encrypted data could be commercially exploited when aggregated at scale, particularly metadata tied to user behaviour.
The Competition Commission of India had earlier imposed a ₹213.14-crore penalty on WhatsApp and Meta, concluding that the 2021 policy amounted to an unfair “take-it-or-leave-it” condition. That penalty was upheld by the appellate tribunal last year, reinforcing user-choice safeguards and mandating opt-out mechanisms for data sharing.
The Supreme Court noted that India’s data protection regime differs sharply from European regulatory frameworks, and that commercial use of shared data—even if indirect—cannot be ignored in the Indian context.
An Interim Freeze and a Broader Signal
As an interim measure, the court ordered WhatsApp to refrain from sharing any user data with Meta until the matter is fully adjudicated. The directive preserves the status quo while signaling that India’s highest court views data protection as inseparable from constitutional rights.
Beyond the immediate dispute, the case reflects a larger shift in India’s approach to digital governance. By framing privacy as a constitutional obligation rather than a contractual arrangement, the court positioned itself as a decisive arbiter between global technology platforms and the rights of Indian citizens.
The final outcome remains pending, but the message from the bench was unmistakable: in India’s digital marketplace, scale and innovation do not override constitutional accountability.
