In a hearing that lasted about 45 minutes in Court Room 13 on August 20, the Supreme Court division bench, constituting Justices Deepak Gupta and Aniruddha Bose, scheduled the next hearing on Facebook’s transfer petition for September 13. The hearing on the WhatsApp traceability case, scheduled for today at the Madras High Court, has not been stayed. They also directed the court to issue notices to all respondents in the petition.

Senior Advocate Kapil Sibal represented WhatsApp while former Attorney General of India Mukul Rohatgi stood for Facebook. Tejas Karia and Vivek Reddy were also there on Facebook’s behalf. The Attorney General of India K.K. Venugopal represented the State of Tamil Nadu, one of the respondents. Virag Gupta appeared for K. N. Govindacharya, an RSS ideologue, who has petitioned the court to be impleaded in the case. Other respondents, including Twitter, Google, YouTube, government agencies, and intervener in the Madras High Court case — Internet Freedom Foundation —, were not present.

As a notice will be issued to the Union of India, sources have told MediaNama that most probably, the Solicitor General of India Tushar Mehta will appear for the Union of India.

Facebook had filed this transfer petition,  on July 31, 2019, to transfer four petition, currently being heard in Madras, Bombay and Jabalpur High Courts, under Article 139A of the Constitution of India which grants the Supreme Court the authority to combine similar questions of law pending before different High Courts as one:

139A. Transfer of certain cases

(1) Where cases involving the same or substantially the same questions of law are pending before the Supreme Court and one or more High Courts or before two or more High Courts and the Supreme Court is satisfied on its own motion or an application made by the Attorney General of India or by a party to any such case that such questions are substantial questions of general importance, the Supreme Court may withdraw the case or cases pending before the High Court or the High Courts and dispose of all the cases itself: Provided that the Supreme Court may after determining the said questions of law return any case so withdrawn together with a copy of its judgment on such questions to the High Court from which the case has been withdrawn, and the High Court shall on receipt thereof, proceed to dispose of the case in conformity with such judgment

(2) The Supreme Court may, if it deems it expedient so to do for the ends of justice, transfer any case, appeal or other proceedings pending before any High Court to any other High Court

The first hearing took place on August 12, and a second hearing on August 19.

Facebook’s arguments

Mukul Rohatgi argued that the relief claimed in Madras High Court (with reference to W.P. No. 20774/2018 and W.P. No. 20214/2018) and in the Supreme Court (W.P. No. 679/2019) are at odds with each other. “One [in SC] says that right to privacy doesn’t allow anybody to [use Aadhaar information]” while the petitions in the Madras High Court claim that “privacy is not paramount and information can be shared with intermediaries”.

Justice Gupta at this point asked about the petition filed in Orissa High Court and Venugopal said that that Orissa wasn’t here. Sources later confirmed to MediaNama that Justice Gupta was mistaken, and meant to refer to the PIL in Bombay High Court.

Rohatgi argued that the “original prayer in the Madras High Court was based on Aadhaar linkage to social media accounts, but the police commissioner of Tamil Nadu asked the court to direct Facebook because of which the High Court expanded the scope of the PILs [to include issues including curbing cybercrime and intermediary liability within the ambit of the legal proceedings]”. As the division bench discussed, he continued, “the original prayer was expanded because of the Tamil Nadu police commissioner.” Sibal called this power of the Madras HC “the gift of Article 226” of the constitution of India which

Article 226 in The Constitution Of India 1949

  1. Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose

(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without

(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and

(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated

(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by clause (2) of Article 32

In light of the “magnitude of problems, magnitude of issues, and the central government’s stance”, Rohatgi argued that the four petitions should be transferred to the apex court.

Rohatgi cited MeitY’s submission that said that “the Ministry will address these concerns”. “If this is going on, is it appropriate for one high court, at the behest of a police commissioner, to [circumvent] the policymaking process?” he asked the court.

Rohatgi said, “In matters of this nature, the last court should decide. Should the IIT professor [referring to Kamakoti] decide? We don’t agree with him” He said that this was a “larger issue flowing from the Puttuswamy judgement which was decided by 9 judges”. He also said that this issue of traceability was not unique to India. “This is a not a homegrown, but a worldwide phenomenon. Does it happen only in Madras? Therefore, the highest court in the land should decide. [Having had] 17 hearings is not an argument.”

Dr Kamakoti submission looms large, Facebook and WhatsApp contest his suggestions on tracing the originator

Rohatgi once again referred to IIT Madras professor Dr Kamakoti’s submission to the Madras High Court that tracing the originator on WhatsApp is technically possible, and how it undermined the international operations of Facebook and WhatsApp. “At tomorrow’s hearing [at the Madras HC], will we hear an IIT professor who will come and say ‘I will tell Facebook how to share information’?”

He once again emphasised the international nature of the organisation. “We are an international organisation and therefore have millions of laws to follow [across the world].” He referred to the demands of the central government in the intermediary liability rules about permanent office in India, etc. “The central government is examining the statutory position which the police commissioner had asked for [such as a permanent office in India]. We have said what we wanted to say [on that issue].”

“Will Mr Sibal tomorrow cross-examine the IIT professor?” he asked the court. Rohatgi explained to the court that according to Kamakoti’s suggestions, if Sibal sent him a message, and he forwarded it to someone else, Sibal’s name would appear in the forwarded message, which he may not wish for. To this, Justice Gupta said, “That may be going too far. Only thing is that the intermediary should have the means to identify [the originator], but not in public domain.”

“If need be in a given situation, [the intermediaries] should be in a position to say that this is the person who sent this,” Justice Gupta opined. To this Rohatgi said, “In this [regime] vacuum today, there is a set of rules. There is provision for complaints to be made to WhatsApp and Facebook.” Justice Gupta said that this was examined by another SC judge, Justice Madan B. Lokur.

Sibal problematised the issue of an originator. “I am on WhatsApp and take an image from YouTube. Who is the originator here? People today can replicate my number using apps. Will I still be treated as the originator? All kinds of serious issues have to be decided.”

Rohatgi said, “We are international organisation that wants to work here. How do we do that when faced with one IIT chap? Is this the scope of Article 226 that Mr Sibal should call a WhatsApp engineer to the court and the IIT professor will tell him how to run the platform? Should one High Court decide when four high courts and the Supreme Court are hearing on this matter?”

Sibal said that the “issue was with WhastApp, not Facebook because of end-to-end encryption. The key is not with WhatsApp, but only with the sender and the receipient.” “The government of India in Madras High Court said that they need time to get the rules in place, but in Madras High Court, the IIT professor says that traceability is possible. What is the point of this piecemeal hearings?” Sibal asked the court.

Justice Bose, at this point, said that that government India was not in the Supreme Court, to which Sibal said that they had filed an affidavit.

Can a High Court decide this issue?

Sibal argued that the traceability issue was a policy issue and thus couldn’t be decided by a high court. Justice Bose said that it could be. As in the Madras High Court, Sibal cited the Union List that defines items on which the Parliament has exclusive power to legislate. Entry 31 in the List includes “posts and telegraphs; telephones, wireless, broadcasting and other like forms of communication”.

As Rohatgi once again cited the Tamil Nadu police commissioner, Justice Bose asked him, “What’s your main grievance? The transfer or the commissioner’s order?”

Rohatgi cited three reasons for seeking a transfer to the Supreme Court:

  1.     Confusion arising from conflicting decisions from the three high courts
  2.     Citizens of India are affected by these decisions, and hence the apex court should look at the case
  3.     Government of India is looking at the traceability issue from a statutory perspective.

Rohatgi cited Justice S. Manikumar’s order, dated August 28, 2018, where he expanded the scope of the PILs: “On the facts and circumstances of this case, and in exercise of powers under Article 226 of the Constitution of India, we are of the prima facie view that the Information Technology Act, 2000 Act and rules made thereunder, have to be implemented, in letter and spirit, and therefore, decide to enlarge the scope of the writ petition. Social media like, Facebook, Twitter, YouTube, Whatsapp, Google from whom information is sought for investigation, Cyber Crime, Commissioner of Police, are required to be heard, as to why they should not be made as party respondents, to these writ petitions.”

Sibal once again made an argument about the international nature of these platforms. “Any product of this nature is a global product. WhatsApp is a global product. Any interim order will apply globally even though this issue is pending before the Union of India for parliamentary legislation. That is the issue.” He also said that “no other country has intervened in this product”. He reiterated Rohatgi’s argument that they couldn’t have conflicting orders, and thus the SC should decide.

Justice Gupta was pretty clear that the high courts could decide such issues.

What about Aadhaar linkage?

Justice Gupta asked Facebook about the effects of all the petitions on Aadhaar. Rohatgi said that according to the Aadhaar Ordinance, “Aadhaar can be used for authentication, even by private entities.” He argued that these were all aspects of privacy that were best decided by the Supreme Court. “We had Puttuswamy 1, then Puttuswamy 2, and then Aadhaar. Merely because 10-15 hearings have taken place [in the Madras High Court], you cannot refuse to transfer.”

State of Tamil Nadu argues

The Attorney General of India, K.K. Venugopal, represented the state of Tamil Nadu and argued against transferring the petitions. He said that “18 hearings, 10 effective hearings, and 5 orders” had taken place/been passed. On the point of traceability, he said, “Originator of all this is a criminal who must be apprehended. Pornography is just one part. Terrorism and defamation are the others.”

Venugopal cited the affidavit submitted by the ACP of Central Crime Branch, Greater Chennai, cited in Madras HC order dated August 28, 2018: “It is respectfully submitted that even though, the service providers are not providing the details, this respondent analyze the social media accounts like facebook, twitter, whatsapp, youtube and others through open source intelligence by gathering the available information viz., photograph, personal details and friend list about suspects and take appropriate actions. [sic]” He argued that crime cells across the country are state entities, not central ones.

He also cited from Madras HC order dated October 31, 2018: “Endeavour of this Court is that how these service providers can help an investigation agency, in the matter of any crime which is reported and taken note of. Is there not a duty and responsibility of a service provider to furnish information to the investigating agency, promptly, and if so, to proceed further. Viewed from the perspective of privacy vis-a-vis crime, we are of the view that service provider has a duty and responsibility, to provide adequate information to the investigation agency.”

Venugopal argued that as far as WhatsApp is concerned, since it is owned by Facebook, the two are practically the same. He cited from the Madras HC order, dated June 6, 2019, where Sibal and Arvind Datar’s submission in court, that WhatsApp cannot technically trace the originator: “On behalf of WhatsApp, Mr.Kapil Sibal, learned Senior Counsel and Mr.P.Arvind Datar, learned Senior Counsel for WhatsApp, submitted that in respect of the content removal on sharing the hash value/originator identity/maintaining log of voice calls, WhatsApp, does not have any mechanism to identify the originator of the information nor WhatsApp maintains the details of log of voice calls.”

Sibal prompted him to read the next paragraph of the judgement that reads: “Both the learned Senior Counsel submitted that on the aspect of Information Technology (Intermediaries Guidelines (Amendment) Rules, 2018, being brought into force, there is a consultative process and the stake holders, have given their comments, in three volumes. It is the further submission that whatever basic information is required by the Law Enforcement Agencies, is furnished and some of the deliverables, have been agreed upon to social media intermediaries.”

Venugopal read from Kamakoti’s submission that suggested that traceability was technically possible. As he read, Justice Gupta, in a moment of levity, said, “At least this part is Greek to me.”

For the state of Tamil Nadu, Venugopal argued that with Kamakoti’s suggestion, WhastApp felt threatened and thus approached the Supreme Court. Sibal shook his head in vigorous disagreement.

Venugopal said that their prayer was not not stop the Madras High Court hearing in the middle.

Blue Whale makes an unlikely appearance

Venugopal drew the court’s attention to the problem of Blue Whale challenge and how the government of India was struggling to find the perpetrator. He cited writ petition no. 943/2017, which was transferred to the Supreme Court. Justice Gupta asked if Blue Whale challenge was circulated only though Facebook and WhatsApp. As Venugopal looked a bit confused with the question, Virag Gupta, the counsel for K.N. Govindacharya, who has filed a petition to be impleaded in the case, said that the links to the challenge were primarily circulated on WhatsApp and Facebook.

SC Bench: To transfer or not to transfer is the question

Justice Gupta said that the bench would not go into the merits of the case, but, at this stage, just evaluate the need to transfer. He said that the primary conflict was between the right to privacy and the right to govern an entire country. For the latter, it was important to consider under what conditions information was to be given and to whom. He remarked that if this were the 50s or the 60s, the Supreme Court would have sought ten opinions from the high courts, but that “in the last decade or so, things had changed”.

Venugopal said that the Madras HC division bench was “practically decided”. “You have seen the progress made. Tomorrow is the 21st hearing. You will have some judgement from a very enlightened division bench.” He suggested that the SC could perhaps “ignore” other high courts for the time being, but let the Madras HC hearings go on. “When the Madras High Court hearings are about to be completed, they want to move. Let the bench decide.” Rohatgi challenged Venugopal’s characterisation of the Madras HC’s progress: “Not for final hearing. That is wrong.” Sibal seconded him and said that in the August 21 hearing, the first objections to Kamakoti’s suggestions will be heard. Gupta made an interjection but was shut down by the bench.

Justice Bose asked the State of Tamil Nadu, “In individual crime detection, aren’t there enough provisions to find the originator through social media companies?” Venugopal said, “The problem is that WhatsApp doesn’t have the provision to find the originator, so they say that how do we help you?” Justice Gupta asked about using Aadhaar number. Venugopal immediately replied, “That is not the focus now. It is now about cybercrime.”

Readers should note here that the debate in the Madras HC has evolved beyond the Aadhaar linkage, and the division bench had categorically denied the possibility of such linkage.

When Venugopal cited the Blue Whale case (W.P. No. 943/2017), Rohatgi said, “The Blue Whale case also came to the Supreme Court. After 5 High Courts, it came here.” He cited from the record of hearings dated October 13, 2017: “As we are dealing with the issue pertaining to on-line digital games such as ‘Blue Whale’, we would request the High Courts in the country not to address the said issue to avoid multiplicity of proceedings and conflicting orders/directions.” Rohatgi argued that this was an “identically placed” case, and of Venugopal’s own showing. “Why is the state government so keen that its high court should decide?” Rohatgi questioned.

Justice Gupta replied, “We are aware. Blue Whale is at least not the dark web. [leading Sibal to exclaim “wow!”] Dark web is much worse. I don’t know how to access it, but I have heard about it.”

Justice Gupta summarised the problem of technology in one sentence: “It’s a fight within technology about who’s faster”, prompting Venugopal to say, “And their answer is ‘we’re an international organisation’.” Justice Bose asked if WhatsApp’s technology was “deliberately designed this way”. Sibal immediately said no. Gupta vehemently agreed, but was ignored.

K.N. Govindacharya’s petition seeking to be impleaded

Justice Gupta asked Virag Gupta to explain who he and his client were. Gupta said that his client wanted to be impleaded as he was pursuing cases on similar matters. He cited 5 reasons for wanting to be a part of this case:

  1. WhatsApp and Facebook are the biggest violators of privacy, contrary to their claims. He said that case was being heard before Justice R.F. Nariman on this point.
  2. The Big Tech do not want to come under Indian jurisdiction.

Justice Gupta intervened and asked him to focus on why he should be a part of the transfer petition. Gupta cited three reasons for seeking a stay against the transfer:

  1. The four petitions in questions are not connected cases; they are not all related to Aadhaar.
  2. If these four petitions are transferred, all social media cases all over the country should also be transferred to the Supreme Court as the five major Big Tech firms, Google, YouTube, Facebook, Twitter and WhatsApp, are respondents in this case.
  3. Facebook and WhatsApp are not complying with Delhi High Court guidelines. Existing guidelines were notified in 2014.

On the last point, Justice Gupta said that if the companies were flouting Delhi HC orders, Gupta should file a “contempt writ”. He further said, “We are giving you a hearing, but not impleading you. What is your point?” Gupta reiterated his argument that these companies don’t want to come under Indian jurisdiction. Justice Gupta told him to let the courts decide that. Gupta made a plea to hear the final judgements from the high courts. Sibal intervened and quoted from Gupta’s petition which sought transfer of the case, leading to some confusion.

What’s next?

The Supreme Court division bench issued the following orders:

  • Hearing before the Madras High Court (scheduled for today0 may go on “but no effective order be passed till further orders”
  • Notices to be issued to all unserved respondents through email, returnable on September 13, 2019.
  • The next hearing on the transfer petition is on September 13, 2019.

MediaNama checked in with Antony Clement Rubin and Janani Krishanamurthy whose PILs have arguably been the biggest influences on prompting the transfer petition. At the time of publishing, neither had received a notice.

On the transfer petition, Rubin said, “Madras High Court has heard the case right from the beginning. They have called in technical experts as well. People are also flying in from abroad. Moving the case to the Supreme Court would have left everything in the air. I am glad that the Supreme Court gave the Madras High Court the time and space to hear this case out.” He further said that Facebook has a right to go to the Supreme Court. “I can’t say that it is a bad thing. Facebook didn’t have much of an issue. [WhatsApp did because of lack of traceability.]” On the point of Aadhaar, he clarified that that wasn’t his focus. “My focus is on traceability and finding the originator. The originator shouldn’t get the benefit of privacy. There should be some task force to address cybercrime and cyberbullying.”

Krishnamurthy told MediaNama, “Even if it goes to the Supreme Court, the government of India will take the decision. May the best lawyers fight it and bring justice.”

Madras, Bombay, and Jabalpur HC petitions in question

Facebook wants to transfer four petitions (TPC 1943-1946/2019) that are sub judice in Madras, Bombay and Jabalpur High Courts.

The case in the Madras High Court, which might lead to enforcement of traceability in WhatsApp, had been filed in 2018 as two PILs by Antony Clement Rubin (WP. No. 20774/2018) and Janani Krishnamurthy (W.P. No. 20214/2018) that sought a writ mandamus (special order by court) to “declare 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 case in the Bombay High Court was filed as a PIL by Sagar Rajabhau Suryavanshi (PIL/147/2018) in October 2018. It sought to bring unregulated content on Facebook, Google, YouTube and Twitter, especially in the form of paid advertisements, within the ambit of Section 126 of the Representation of Peoples Act, 1951 so that free and fair elections could be conducted. It also sought direction against the Election Commission of India to take necessary steps.

The third case that Facebook wants to be transferred is pending in the Japalpur High Court. Amitabh Gupta, an advocate, had filed a writ petition (W.P. No. 13076/2019) in July 2019 seeking guidelines from the central government related to the operations of Facebook and WhatsApp. The PIL wants Facebook permits an individual to open an accounts only after s/he furnishes KYC details, PTI had reported. It also wants Facebook to verify new users through ID documents such as Aadhaar, driving licence, and/or voter ID in addition to providing a photograph. The PIL also wants every WhatsApp group “with more than 50 members to add the mobile number of a policeman provided by the local police station where the group operates”.

(NB: In the Supreme Court records, Janani Krishnamurthy isn’t listed as one of the respondents in the transfer petition, but sources have confirmed to MediaNama that she should be one.)

In addition, Facebook had cited W.P. No. 679/2019, currently pending in the Supreme Court in its transfer petition. This writ petition, filed by S.G. Vombatkere and Bezwada Wilson in July 2019, challenges the constitutionality of the new Aadhaar (and Other Laws Amendment) Ordinance, 2019 and the Aadhaar (Pricing of Aadhaar Authentication Services) Regulations, 2019. The petitioners alleged that the UIDAI intends to use the ordinance to commercialise and financially gain through the large-scale collection of the personal data of citizens and use of Aadhaar database by private entities. At the August 12 hearing on the transfer petition, the division bench had directed to submit “paper books” of this petition as well.

What happened on August 19?

The hearing lasted less than 15 minutes and the division bench of the Supreme Court adjourned the matter till August 20 as the bench needed some time to consider the documents filed by Facebook for the transfer petition.

 Facebook: Do we keep arguing the same thing everywhere?

Justice Gupta said that in the Supreme Court, “the challenge is the larger issue” of whether or not Aadhaar can be used for financial purposes. Rohatgi intervened and argued that the “principal question is if Aadhaar [information] can be shared with private entities”. He cited the three High Court petitions in questions wherein the three courts have held different opinions on this matter. “Madras High Court has said that you can’t share the Aadhaar information [with private entities], while Bombay and Jabalpur High Courts have said you can,” he said. “Where do we [Facebook] go? How many places will I go to argue the same thing?” he beseeched the court.

Justice Gupta cited a recent Supreme Court order whereby the petitioners were directed to approach the high court first. In April 2019, the division bench constituting Justices S.A. Bobde and S.A. Nazeer had refused to entertain a plea challenging the Aadhaar Ordinance brought by the Centre and directed the petitioners to approach the high court first with their grievances, PTI had then reported.

Dr Kamakoti’s suggestions make another appearance

Rohatgi also included the Tamil Nadu police’s plea that the originator should be traced when messages are forwarded. “Central government has gone on record in the [Madras] High Court that they are coming up with regulation [on traceability]. We can’t have conflicting judgements.”

Venugopal, on behalf of the State of Tamil Nadu, said, “All Aadhaar orders are annexed here. 18 hearings [before the Madras High Court] have taken place.” He cited Dr V. Kamakoti’s submission to the Madras High Court to argue that “the originator can be traced”. “Origin [of the message], according to Facebook, which owns WhatsApp, is encrypted. Madras High Court, on the basis of IIT professor’s [referring to Dr Kamakoti] affidavit, is coming to conclusion. The proper thing will be to have a decision so that you [the Supreme Court judges] can decide [on the matter if it is challenged].”

At this point, Justice Bose remarked, “Facebook has a policy of not sharing” to which Rohatgi said, “WhatsApp has encryption because of which we can’t trace.” Justice Bose also commented that Apple doesn’t share information.

Reiterating Dr Kamakoti’s submission, Venugopal said, “Their [Facebook/WhatsApp’s] case in [Madras] High Court is that they can’t find the originator. But the IIT professor’s submission proves otherwise.” At this, Rohatgi practically thundered: “Who is this IIT professor to tell us how to run the platform world over?”

Another impleader wants to join the party

Virag Gupta attempted to argue on behalf of K.N. Govindacharya, but Justice Gupta told him, “Your petition to be impleaded hasn’t been accepted yet. Thus, you can’t argue in this court.” Eventually, though, the justices gave him the floor and Gupta pleaded, “All similar matters related to Aadhaar [beyond the four petitions in question] should be brought here [to the Supreme Court].”

Follow our coverage of the WhatsApp traceability case here.