A two-judge Bench of the Delhi High Court rejected the petition on September 23rd 2016. The Court, however, directed WhatsApp to delete the data, until September 25th 2016, of users who choose to delete the application.
Thereafter, the petitioners filed a Special Leave Petition at the Supreme Court against the Delhi High Court judgment. The SLP was initially heard by a Division Bench and referred to a Constitution Bench on April 5th, 2017.
Arguments by the Union Government
The Bench began the hearing by asking the Union Government to provide a reasonable time frame within which the Digital Data Protection Bill, 2022 can come into effect. Attorney General R. Venkataramani and Solicitor General Tushar Mehta, representing the Union, said the Bill would be introduced at the Parliament during the second half of the ongoing parliamentary session which begins on March 3rd, 2023.
The Union also stated that the Bill that was proposed had considered the Privacy Policies of the US as well as Europe and had taken appropriate measures to ensure the Indian users were not discriminated against.
Arguments by Mr. Kapil Sibal Representing WhatsApp
Senior Advocate Kapil Sibal, representing WhatsApp, stated that the Bill will come into effect around July 2023 and urged the Bench to consider the matter after that. He argued that if the Judgment is delivered before the Bill comes into effect, it may serve as an obstacle for the Bill to have full effect.
Further, Mr. Sibal argued that the current policy does not misuse user information. WhatsApp only shares content with third parties after obtaining consent and only does so for the benefit of the user.
Arguments by Mr. Shyam Divan Representing the Petitioners
Mr. Divan presented three reasons to hear the case immediately. First, there is no definite timeline for Parliament to enact the Bill. Second, WhatsApp was sharing user information to Facebook and other 3rd parties for commercial purposes without user consent. This breaches the fundamental Right to Privacy. Third, WhatsApp had different privacy standards for users in Europe and India. This breaches the right to privacy guaranteed under Transnational Human Rights Law.
Order Passed by the Bench
After lunch, the Bench informed the parties that they would hear the matter if the parties could finish their arguments by February 14th, 2023. The Petitioners agreed but the Respondents said this was not possible as they had other cases to attend.