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Facebook transfer petition: WhatsApp, Facebook submit list of related cases to SC

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In accordance with Supreme Court’s directions in the last hearing, WhatsApp and Facebook have submitted a list of matters similar to the WhatsApp traceability case that are pending before the Supreme Court and the different High Courts. These cases either deal with privacy and surveillance reforms, or Aadhaar-social media linkage. It appears that only Facebook, as the petitioner in the transfer petition, was supposed to submit the list. None of the other parties (except WhatsApp) have submitted such a list.

Here’s a list of matters that they have submitted:

  1. G. Vombatkere vs Union of India: This challenges the Aadhaar Ordinance. However, since the Ordinance has expired, Vombatkere and Bezwada Wilson have filed another petition (W.P. No. 1077/2019) against the Aadhaar Act. It’s not clear if Facebook and WhatsApp will revise the list to reflect this change. [W.P. No. 679/2019]
  2. Mahua Moitra vs Union of India: This petition, by Lok Sabha MP Mahua Moitra, is against the Request for Proposal for setting up of a social media monitoring hub that would monitor social media communications in and originating from India. It raises questions about surveillance, right to privacy, and freedom of speech. [W.P. No. 916/2018]
  3. 6 petitions related to Section 69 of the Information Technology Act, 2000:
    1. L. Sharma vs Union of India (W.P. (crl) No. 1/2019)
    2. Amit Sahni vs Union of India (W.P. No. 2/2019)
    3. Mahua Moitra vs Union of India (W.P. No. 13/2019)
    4. Shreya Singhal vs Union of India (W.P. No. 34/2019)
    5. Internet Freedom Foundation vs Union of India (W.P. No. 44/2019)
    6. People’s Union for Civil Liberties (PUCL) vs Union of India (W.P. No. 61/2019)

All of the above cases are listed before the Supreme Court. In addition, the three of the four cases that Facebook sought to be transferred to the Supreme Court are also there:

  1. Madras High Court: Two PILs by Antony Clement Rubin and Janani Krishnamurthy submitted before the Madras High Court that sought 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 HC had rejected the possibility of linking Aadhaar to social media accounts, and instead expanded the scope of the case to deal issues such as curbing cybercrime and intermediary liability. (W.P. No. 20774/2018 and 20214/2018)
  2. Jabalpur High Court: Amitabh Gupta, an advocate, had filed a writ petition in July 2019 seeking guidelines from the central government related to the operations of Facebook and WhatsApp. The PIL wants Facebook to permit an individual to open an account only after s/he furnishes KYC details. 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. (W.P. No. 13076/2019)

There’s confusion about what happens to the fourth petition that asked for mandatory linking of Aadhaar with Facebook accounts and was disposed by the Bombay High Court (PIL/147/2018). During the September 13 hearing on the transfer petition in the Supreme Court, an unidentified lawyer on behalf of Sagar Rajabhau Suryawanshi, the petitioner, informed the SC bench, “The Bombay High Court has disposed off my PIL [because of the transfer petition] pending before the Supreme Court.” Justice Deepak 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. The case itself, as such, remains unresolved.

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