Kapil Sibal informed the packed, sweltering court that Facebook had filed a special leave petition (diary no. 32478/2019) challenging the various Madras High court orders on the WhatsApp traceability case. MediaNama learnt that WhatsApp has also filed a similar petition (diary no. 32487/2019). These petitions have not been listed yet, and the Supreme Court bench, comprising Justices Deepak Gupta and Aniruddha Bose, ordered that the special leave petitions be heard with the transfer petition at the next hearing on September 24. As per the case details, this petition was filed on September 5, presumably with the intent of getting it listed in today’s hearing itself. However, that did not happen.

Justice Gupta, who was particularly animated today, asked the Solicitor General of India Tushar Mehta for the central government’s progress on coming up with Intermediary Liability Rules. He said, “We may give time only if Union of India is working on something that will be released in the very near future.” He reiterated that the court needs to know if the government is merely “contemplating” or coming out with something soon, to which Mukul Rohatgi, Facebook’s counsel, declared, “Statutory process of consultation is underway.”

Despite high expectations of a judgement on Facebok’s transfer petition, it all boiled down to a barely 8-minute hearing that saw an adjournment.

The next hearing is scheduled for September 24 by when the Union of India has to file its submission, Facebook and WhatsApp have to respond to the Tamil Nadu government’s submission, and when Facebook’s special leave petition challenging Madras HC orders will be listed along with the transfer petition.

Former Attorney General Mukul Rohatgi represented the petitioner, Facebook, while Senior Advocate Kapil Sibal represented WhatsApp. The Union of India and Ministry of Electronics and Information Technology (MeitY) were represented by the Solicitor General of India Tushar Mehta. The Attorney General of India K.K. Venugopal, who is representing Tamil Nadu in the Supreme Court for this transfer petition, was not there, but the state was represented by the Additional Advocate General for the State of Tamil Nadu Balaji Srinivasan. Senior Advocate Gopal Subramanium appeared for Google and YouTube. Priyadarshi Banerjee stood in for Senior Advocate Sajan Poovayya who has been representing Twitter in the Madras High Court as well. In addition, Vivek Reddy and Tejas Karia appeared for Facebook, Pavit Singh Katoch for WhatsApp, and Akhil Anand for Google and YouTube. A lawyer for the petitioner in the Bombay High Court case also made an appearance. Senior Advocate Arvind Datar is no longer representing WhatsApp in the WhatsApp traceability case in Madras High Court, nor did he represent the company in the transfer petition before the SC.

The intervener in the Madras High Court case, and respondent in the transfer petition, Internet Freedom Foundation (IFF), was represented by Udayaditya Banerjee, Prasanna S., and Ria Singh Sawhney. Apar Gupta, IFF’s executive director, was also present. Virag Gupta appeared for K.N. Govindacharya, an RSS ideologue, who wants to be impleaded in the transfer petition.

This matter must be decided as early as possible: Justice Deepak Gupta

Rohatgi began the hearing by asking for the Union of India’s response to the transfer petition and the issues discussed therein. This prompted Justice Gupta to ask, “What are the State’s [of India] views [on the transfer petition]? We would like Union of India’s response. This needs to decided as early as possible. We don’t know if the High Court[s] will decide or if we will.”

Bombay HC petition disposed; ‘Bombay HC can’t do that,’ says Justice Gupta

An unidentified lawyer on behalf of Sagar Rajabhau Suryawanshi, the petitioner who filed a PIL before the Bombay High Court asking for mandatory linking of Aadhaar with Facebook accounts, said, “The Bombay High Court has disposed off my PIL [because of the transfer petition] pending before the Supreme Court.” Justice Gupta immediately said, “Bombay High Court can’t do that. I don’t know if the transfer petition will actually be accepted. What happens if we transfer all the petitions to the Madras High court or let Madras High Court pass a judgement first? What will you do then?”

Readers should note that the Bombay High Court order, dated August 28, 2019, read, “Learned Counsel for the Petitioner states that he has been instructed to withdraw the Public Interest Litigation because the issue raised herein is pending before the Supreme Court and the Petitioner intends to directly intervene in the proceeding before the Supreme Court.” This suggests that the decision was prompted by the petitioner’s desire to intervene in the transfer petition, not of Bombay High Court’s spontaneous volition.

NGO fighting child abuse files an impleadment application

Prajwala, an NGO that focusses on issues of child sexual abuse and rape, filed an impleadment application that was also listed today. Today, Aparna Bhat, their lawyer who is also representing them in the Supreme Court case (diary no. 6818/2015) about the dissemination of videos showing child sex abuse on social media, told the court, “This case [transfer petition and subsequent judgements] will have a bearing on the Prajwala case. … Aadhaar will not serve any purpose.”

Justice Gupta said that the court was not yet dealing with the merits of the case, it is still deciding if the petitions should be transferred or not. He also said that the Prajwala case is “a different case”, which is being heard “by a different bench, with in-camera proceedings”, and “that matter will be dealt with separately”.

Later, Bhat told MediaNama, “We don’t support Aadhaar because of privacy reasons and because it is ineffective in dealing with these issues.”

What will happen next in the Madras High Court?

The momentum that the WhatsApp traceability case had achieved has come to a standstill. Although the next hearing is scheduled for September 19, it will presumably be a non-effective hearing because:

  • In the absence of any decision by the SC, the previous SC order that said “no effective order may be passed till further orders” remains in effect.
  • The roster in Madras HC has changed. As a result, the division bench, comprising Justices S. Manikumar and Subramonium Prasad, which has been hearing this matter for the last 13 months, has been replaced by a new bench constituting Justices M. Sathyanarayanan and N. Seshasayee. The case will practically start afresh.
  • Justice S. Manikumar has also been recommended by the Supreme Court Collegium to be the next Chief Justice of Kerala High Court. If that is approved by the government, his jurisdiction itself will change.

Original article. Published at 12:22 pm:

In a hearing that uncharacteristically lasted about 10 minutes in court number 13, the Supreme Court division bench, constituting Justices Deepak Gupta and Aniruddha Bose, scheduled the next hearing on Facebook’s transfer petition for September 24. It appears that the Madras HC hearing, scheduled for September 19 will be another non-effective hearing.

Senior Advocate Kapil Sibal represented WhatsApp while former Attorney General of India Mukul Rohatgi stood for Facebook. The Additional Advocate General for Tamil Nadu Balaji Srinivasan appeared for TN. Solicitor General of India Tushar Mehta appeared for MeitY and Union of India. Senior advocate Arvind Datar is no longer representing WhatsApp in this matter. Google and YouTube were represented by Senior Advocate Gopal Subramanium while Twitter was represented by Priyadarshi Banerjee, on behalf of Senior Advocate Sajan Poovayya. The intervener Internet Freedom Foundation (IFF) is being represented by Udayaditya Banerjee, Prasanna S, and Ria Singh Sawhney in the Supreme Court. Potential intervener in the transfer petition, Govindacharya, was represented by Virag Gupta.

Facebook has petitioned the Supreme Court of India to transfer four petitions, currently being heard in Madras, Bombay and Jabalpur High Courts, to the Supreme Court under Article 139A of the constitution. The petition was filed on July 31.

Deep dive: Facebook Transfer Petition | WhatsApp Traceability Case

(This article was republished with a detailed account at 4:58 pm. The original article, available below, was published at 12:22 pm.)