A new chapter in the WhatsApp traceability case began on a rather anti-climactic note on January 30 – the Supreme Court just directed the Madras High Court to transfer all files related of the two writ petitions to the Supreme Court and scheduled the next hearing for after 3 weeks (probably February 20). 12 cases are now tagged together in this matter (T.C. (C) 5/2020), all of which had been submitted by Facebook and WhatsApp either in their transfer petition or in a separate list as directed by the Court in the last hearing. The division bench constituting Justices L. Nageswara Rao and Deepak Gupta presided over the hearing.

‘Intermediary Guidelines have not been notified yet,’ WhatsApp tells SC

Government needs more time, office of Solicitor General tells MediaNama: Rajat Nair, from the office of Solicitor General Tushar Mehta, who is representing the Union of India and MeitY, told us before the afternoon hearing that “the point of their limited appearance, if it happens” would be to tell the court that the process of finalising/notifying Intermediary Rules is in an advanced stage, but “the government needs some more time”, owing to “bureaucratic processes”. He also told us that the Personal Data Protection Bill, 2019, would “take care of some of these issues”. He confirmed that he was talking about verification on social media platforms, but did not respond on being told that that process is voluntary, not mandatory. During the hearing, an unidentified government lawyer brought up the Personal Data Protection Bill, 2019, but everyone just assumed he meant the Intermediary Guidelines.

When the bench brought up the matter out of turn at 3:40 pm, Senior Advocate Arvind Datar, on behalf of WhatsApp, called it a “very interesting case” whose related cases “look at the validity of Section 69 of the Information Technology Act, 2000”. He informed the court that the “entire process [of notifying the Intermediary Guidelines] was to be resolved by January 15”, but they had not yet been notified by the Ministry of Electronics and Information Technology (MeitY). As the judges discussed this statement, Justice Rao asked for the order. Datar informed him that this was specified in the last order by Justice Gupta. At this point, Justice Gupta showed signs of recollecting the case. The division bench constituting Justices Gupta and Aniruddha Bose had presided over the Facebook transfer petition.

Madras HC directed to transfer files

The Additional Advocate General for the State of Tamil Nadu Balaji Srinivasan, accompanied by the standing counsel for Tamil Nadu, T.R.B. Sivakumar, had mentioned the case right in the morning and informed the bench that the files from the Madras High Court hadn’t reached the SC yet.

During the afternoon hearing, Justice Rao asked for details of cases whose files need to be transferred from Madras High Court, which Datar immediately provided — W.P. No. 20774/2018 and 20214/2018. He had initially scheduled the next hearing for two weeks from thence, but at Datar’s request, switched it to three weeks.

What about the other cases on the list?

Vipin Nair, who is representing Major General (Retd) S.G. Vombatkere and Bezwada Wilson in their challenge against the then Aadhaar Ordinance (W.P. No. 679/2019), now Aadhaar Amendment Act (W.P. No. 1077/2019), told MediaNama that they would try to get these cases de-tagged from the traceability case as they are to be heard by another bench. Interestingly, the original transfer petition and the list of related cases submitted by WhatsApp had only mentioned W.P. No. 679. MediaNama had then pointed out that 679 is infructuous given that the Ordinance had expired and W.P. No. 1077/2019 was the new petition. Both petitions have been tagged in this transferred case.

All other cases from Facebook’s list have been tagged in the transferred case except Mahua Moitra’s case against UIDAI (W.P. No. 916/2018), probably because it was disposed on December 17, 2019, after Facebook had already submitted its list. There was confusion about the case from Bombay High Court (Sagar Rajabhau Suryavanshi v. Union of India PIL/147/2018) since the case had been disposed off by the Bombay HC at the petitioner’s request. But this is the main case in the transferred case and the other 11 cases are linked to it.

Unexpected hearing

Since MeitY has not notified Intermediary Guidelines (Amendment) Rules 2018, despite what it told the Court before the cases were transferred, most parties did not expect the case to even be listed. The case, T.C. (C) 5/2020, was listed in the supplementary list on January 29, but given its number (112), most people did not expect it to be taken up yesterday at all. In spite of that, Facebook and WhatsApp appeared with a battery of lawyers including Senior Advocate Datar, Tejas Karia, Vivek Reddy, and Pavit Singh Katoch. Datar had represented WhatsApp in the Madras High Court, but not during the Facebook transfer petition.Brian Hennessy, director and associate general counsel at WhatsApp, was also present in the court room when the short hearing happened in the afternoon.

Google was represented by Senior Advocate Sidharth Luthra, and accompanied by Akhil Anand. Given the out of turn hearing in the afternoon, Luthra ran in just as Justice Rao was dictating the order. Senior Advocate Sajan Poovayya represented Twitter and was present in the morning. Priyadarshi Banerjee represented Twitter in the afternoon. Lawyers representing Internet Freedom Foundation, both as an intervener in the Madras High Court, and in its tagged case that challenges Section 69, were also there.

Attorney General of India K.K. Venugopal, who is representing the State of Tamil Nadu in the Supreme Court, was also expected to make an appearance if the matter was brought up before the bench. However, neither he, nor anyone else from his office, were there in the afternoon.

Dive Deeper: Facebook Transfer Petition | WhatsApp Traceability Case