“We’ve already clarified that though the particular prayer [of Aadhaar linkage] was considered, we dismissed it as it violated the Supreme Court judgement [on Aadhaar usage].” — Justice S. Manikumar, Madras High Court

Reiterating its view that Aadhaar cannot be used to authenticate social media accounts, the Madras High Court on August 21 once again said that it had dismissed the original prayer to link Aadhaar to social media accounts in what has become the WhatsApp traceability case as it violated the Supreme Court’s judgement on Aadhaar. However, given that the Supreme Court is hearing Facebook’s transfer petition, the Madras High Court adjourned the hearing on the WhatsApp traceability case until September 19. Although the original PILs, filed by Antony Clement Rubin (w.p. no. 20774/2018) and Janani Krishnamurthy (w.p. no. 20214/2018) sought the “linking of Aadhaar or any one of the Government authorized identity proof as mandatory for the purpose of authentication while obtaining any email or user account”, the division bench has since then expanded the scope of the PILs to include issues including curbing cybercrime and intermediary liability, and repeatedly dismissed the possibility of Aadhaar linkage.

Heard in Court No. 3 by the division bench constituting Justices S. Manikumar and Subramonium Prasad, the hearing saw Facebook represented by the former Attorney General of India Mukul Rohatgi, and Senior Advocate N.L. Rajah represented WhatsApp. Senior Advocates Kapil Sibal and Arvind Datar, who have represented WhatsApp throughout the case, were not present. The State of Tamil Nadu was represented by Additional Government Pleader E. Manoharan, who was later joined by his senior, the Advocate General for Tamil Nadu, Vijay Narayan. They were accompanied by Balaji Srinivasan, the Additional Advocate General for Tamil Nadu, who also represented the state in the Supreme Court on August 19 and 20 with Attorney General of India, K.K. Venugopal. Senior Advocate P.S. Raman was present for Google, Senior Advocate Satish Parasaran, Tejas Karia, Vivek Reddy and Pavit Singh Katoch were present for Facebook, and Allwin Godwin was present for WhatsApp. The intervener, Internet Freedom Foundation, was represented by Suhrith Parthasarthy. TRAI advocate Peer Mohamed was also there. Senior Advocate Sajan Poovayya, who has represented Twitter throughout this case, was not there.

The hearing lasted more than an hour, which included a 20-minute wait for the Advocate General for Tamil Nadu, Vijay Narayan, and a 20-minute dictation of the order by Justice Manikumar.

Madras HC reiterates its stance on Aadhaar linkage: ‘It can’t happen’

Justice Manikumar said, “Let the transfer petition be considered. We’ve already clarified that though the particular prayer [of Aadhaar linkage] was considered, we dismissed it as it violated the Supreme Court judgement [on Aadhaar usage]. We expanded the scope of the petitions … for social media to help in investigations.” The bench had made the same pronouncement in the hearing on June 27 when Justice Manikumar reiterated the Supreme Court’s September 2018 decision to strike down Section 57 of the Aadhaar Act and told the petitioners, “Aadhaar is a government accord used only for social welfare schemes. You cannot have the government linking it with social media.

The August 21 order by Justice Manikumar reiterated the bench’s decision on the Aadhaar linkage issue twice:

(14) Though prayers in WP.Nos.20774 and 20214 of 2018 are for a direction to the respondents therein to direct linking of Aadhar or any other identity proof, as mandatory with the social media, after going through the contents of the counter affidavit, filed by the Additional Commissioner of Police, Central Crime Branch, Chennai and the need to have effective implementation of the provisions of the Information Technology Act, 2000 and the rules framed thereunder, towards effective and proper investigation, we expanded the scope of the writ petitions, and decided not to address the prayers as such in the writ petitions, more so, taking note of the decision of the Hon’ble Supreme Court in K.S.Puttaswamy Vs. Union of India reported in (2019) 1 SCC 1.

(18) While clarifying that the scope of the instant writ petitions has been expanded for effective implementation of the provisions of Information Technology Act, 2000 and the rules made thereunder, insofar as prevention and detection of crimes and investigation and not as prayed for in WP Nos.20774 and 20214 of 2018, we deem it fit to adjourn the hearing of the writ petitions. [emphases ours]

Rohatgi agreed and said, “This was said in Supreme Court by the Attorney General [of India]. All orders were filed by Mr Balaji, who is standing here. The High Court had expanded the scope under [Article] 226 and added other respondents.” He added that it was his “duty to point out which is the best course of action”. “High Court may go on, not that it must go on. I don’t know what is the great urgency for the state government. [sic]” Justice Manikumar questioned him instead, “What is your reason [for the urgency]?” Rohatgi responded by saying “What if the roster [of judges] changes?” He also contended that the “stand of the central government is opposed to the stand of the state government”.

Should the hearing go on in the Madras HC?

Rohatgi began his argument by informing the bench of Facebook’s transfer petition pending the Supreme Court. He said that the petition was filed for several similar matters that are going on in three high courts. The transfer petition was filed under Article 139A of the Indian Constitution that allows matters to be transferred to SC or, at the direction of SC, to one high court to avoid conflicting judgements on similar matters.

Rohatgi argued that since the SC will hear the transfer petition on September 13, and until then, citing the SC order, “hearing before the Madras High Court may go on but no effective order may be passed till further orders”. “In light of this matter, it is appropriate to hear this matter post September 13 if no effective order can be passed,” he told the court. Justice Manikumar took cognizance of his argument in his order too: “As rightly contended by Mr Mukul Rohatgi, learned Senior Advocate that Hon’ble Supreme Court has left to the discretion of this Court to hear the writ petitions, but then, no effective order can be passed.”

Rajah, representing WhatsApp, said that central government was “in the process of framing” the Intermediary Guidelines and had solicited comments on it. This argument echoes the argument Kapil Sibal made in the Supreme Court that the traceability issue was a policy issue and thus couldn’t be decided by a high court.

“The transfer petition was heard in the presence of the state government,” Rohatgi informed the court. “Transfer petitions are usually heard ex parte, but in this case, the state [of Tamil Nadu] appeared [in the Supreme Court] and the Supreme Court judges heard everything. They heard it for one hour and thirty minutes because of the importance of this issue,” he said. [NB: The August 20 hearing in the Supreme Court lasted 45 minutes.]

Manoharan asked the judges to allow his senior, the Advocate General of Tamil Nadu, Vijay Narayan, to come and argue the case. The judges allowed that.

The court waited for about 20 minutes for Narayan to arrive. In the meanwhile, the bench heard other matters. The hearing resumed a few minutes after Narayan arrived as the bench wrapped up another matter.

What is the meaning of ‘effective order’ in Supreme Court’s order?

The State of Tamil Nadu, both in the SC and in yesterday’s hearing at the Madras HC, has argued against transferring the case to the apex court. As the hearing in HC resumed, Narayan drew the attention of the court to the last line of the SC order, which Rohatgi had quoted earlier: “In the meanwhile, hearing before the Madras High Court may go on but no effective order may be passed till further orders.” However, Narayan argued that “when the Supreme Court has specifically ordered to continue the hearings, it would look a bit odd to not do that.”

At this point, Justice Manikumar asked, “Effective order means what?” Narayan replied, “An order that is given effect to.”

Justice Manikumar asked the court what the point of hearing the case in the High Court was. “If the Supreme Court transfers the case, [these High Court hearings would be futile].” Narayan argued that while that is true, the SC hadn’t yet transferred the case, so “the hearings can continue”. Rohatgi objected to this characterization, “I disagree. We can’t impute [the SC order]. We have to go by the order.” He argued that the last line of the order was “only a polite way of saying” that hearings shouldn’t go on. Narayan immediately said, “Then they should have passed a stay order.”

Rohatgi argued that it was “best to keep it [the hearing] after the Supreme Court’s” hearing on September 13. Narayan said that the “stay order that they [Facebook] sought was refused”.

Dr Kamakoti’s submission was not discussed

Kamakoti made his suggestions on enabling traceability on WhatsApp without undermining its end-to-end encryption during the May 22 meeting between social media companies and law enforcement agencies convened by the Chief Secretary of the Tamil Nadu government, Dr Girija Vaidyanathan. He has since submitted these in writing to the court, and WhatsApp has also submitted its response. In every hearing since then — two in the Madras High Court and two in the Supreme Court —, despite his absence from the hearings, they have emerged as a bone of contention. However, when the expert was himself present in the court, his submission was not discussed at all.

Kamakoti was accompanied by his colleagues G.S. Madhusudan and Dr Shankar Raman, who addressed the court on his behalf during the July 25 hearing.

What’s next?

The division bench has decided to adjourn hearing till September 19, after the Supreme Court hears the transfer petition on September 13.

(17) We are of the view that when the Hon’ble Supreme Court is seized of the matter regarding transfer, propriety demands to wait till the Hon’ble Supreme Court decides the transfer petitions, returnable on 13.09.2019.

Follow our extensive coverage of the WhatsApp traceability case and Facebook’s subsequent transfer petition here.