WhatsApp-Facebook data sharing: SC to hear issue on 18 April

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

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

The petition by two students - 19-year-old Karmanya Singh Sareen and 22-year-old Shreya Sethi - challenges the contract between the two internet giants to provide access to calls, photographs, texts, videos and documents shared by users despite the fact that privacy is claimed to be prized and guaranteed by WhatsApp.

The duo was aggrieved by the Delhi High Court decision to uphold the contract. The high court confirmed the legality of the policy effective from 25 September, though directing WhatsApp to ''delete completely'' from its server information / data / details of all users who choose to delete their account.

On appeal, the Supreme Court responded by directing Facebook, WhatsApp, the Centre and the Telecom Regulatory Authority of India (Trai) to file responses and roped in 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 was 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-judge bench verdict on the right to privacy in M P Sharma's case and the six-judge bench judgment of 1962 in Kharak Singh case . Both judgments had categorically rejected privacy as a guaranteed right under Article 21 of the Constitution.

 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, assisting the court, intervened to submit that the Supreme Court should not only hear the question of violation of right to privacy under Article 21 but also the right to free speech under Article 19 (1) (a) of the Constitution.

Senior advocate Kapil Sibal contended that privacy cannot be construed as a fundamental right guaranteed under Article 21. What is under contention is the terms of a simple contract between two companies - WhatsApp and Facebook.