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SC refers WhatsApp privacy policy matter to Five Judge Constitution Bench


Social Media Privacy issues
Social Media Privacy issues

Delhi HC had restrained WhatsApp from sharing with Facebook the user information when its new privacy policy came into effect.

Constitution Bench of five judges of  the Supreme Court will decide on April 18,2017 whether a larger denomination of judges should hear a petition for declaration that 2016 policy of instant messaging app WhatsApp to give Facebook access to the information and personal details shared by millions of its users is a violation of their privacy and free speech.

Having at first meant to hear case during summer vacation, Chief Justice of India J.S. Khehar on Wednesday advanced date for the Constitution Bench hearing to April 18, saying it is a “serious issue”.

Case is based on a petition by two young students 19-year-old Karmanya Singh Sareen and 22-year-old Shreya Sethi to challenge contract entered into between the Internet giants to provide access to  the calls, photographs, texts, videos and documents shared by the users despite the fact that the privacy is prized and guaranteed by the WhatsApp.

Duo was aggrieved by Delhi High Court decision to uphold the contract. The High Court took a nuanced position by confirming legality of the policy effective from September 25 though directing WhatsApp to “delete completely” from its server information/ data/ details of all the users who choose to delete their account.

On Appeal, Supreme Court responded by directing Facebook, WhatsApp, Centre and the Telecom Regulatory Authority of India (TRAI) to file their responses and roped in the Attorney-General Mukul Rohatgi to assist it in the case.

When the hearing began, senior advocate K.K. Venugopal, for Facebook, raised the contention that if the WhatsApp-Facebook contract is going to be challenged as a violation of the right to privacy, then a larger Bench than five judges should hear the case.

He referred to the 1954 eight-judges Bench verdict in M.P. Sharma’s case and the six-judges Bench judgment of 1962 in Kharak Singh case on the right to privacy. Both judgment had categorically rejected the existence of privacy as a guaranteed right under Article 21 of the Constitution.

Mr. Venugopal argued that any future debate on the question of right to privacy should be decided by a larger Bench of at least nine judges.

Advocate Madhavi Divan, while assisting the Court, intervened to submit that Supreme Court should not only hear the question of violation of the right to privacy under Article 21 but also Right to Free Speech under Article 19 (1) (a) of Constitution.

While, Senior Advocate Kapil Sibal contended that the privacy cannot be construed as a Fundamental Right guaranteed under the Article 21 of Constitution.


Represented by the Senior Advocate Harish Salve, students had argued that new policy would result in changing most valuable feature of WhatsApp that is privacy. They had demanded an option of “do not share” for the users who did not wish to share information with the Facebook.

On April 18, Five-Judge Constitution Bench may decide the convenient dates for presentation of  the arguments in the matter. There is also a likelihood that hearing in the case on the merits may start only after July 2, post Court’s summer vacations.

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