The batch of petitions challenging the 2016 privacy policy of WhatsApp were mentioned before a Constitution Bench of the Supreme Court.

A 5-judge Bench of Justice KM Joseph, Justice Ajay Rastogi, Justice Aniruddha Bose, Justice Hrishikesh Roy and Justice CT Ravikumar were apprised about the Data Protection Bill, which will be introduced before the Parliament in the second half of the Budget Session, 2023.

Tushar Mehta, the Solicitor General has told the bench that an affidavit has been filed in this regard. According to Mr. Mehta, the Bill might cover most of the issues canvassed in the petitions.

The SGI has requested that the Bench for permitting anyone to deliberate on the contents of the Bill, in open court until the same is introduced in the Parliament.

Advocate Mr. Kapil Sibal who represented Meta-WhatsApp asked the Bench for taking up the matter once the Bill is introduced.

Advocate, Mr. Shyam Divan, who appeared on behalf of the petitioners has opposed the suggestion for deferment.

Advocate Divan said that the privacy policy of WhatsApp underwent a drastic change in 2016. Due to the policy, WhatsApp could share certain elements of data – personal and meta-data to Facebook Group of Companies.

Advocate Diwan told the Court that in 2017 when the matter was referred to the Constitution Bench, the Solicitor General had assured the Bench about an enactment pertaining to the protection of data.

He also apprised the Bench that the last Bill, which was introduced in the Parliament was ultimately withdrawn by the Centre.

He said that earlier also the bill was introduced but withdrawn so the introduction of a Bill itself should not defer the taking up of this case.

The Bench was informed that some of the issues raised in the petitions do not deal with the Data Protection Bill at all.

Mr. Sibal vehemently argued that the Court should await the introduction of the Bill in order to effectively decide the matter.

Justice Roy questioned the petitioners if there is any harm on the matter been deferred for a reasonable period in view of the fact that the Centre proposes to introduce the Data Protection Bill within a period of two days.

In response, Mr. Divan pointed out that the matter was pending before the Apex Court since 2016. He also submitted that there are issues which do not seem to be addressed by the provisions of the forthcoming Bill.

Mr. Sibal pointed out that the issue has been addressed by the 9-Judge Bench in K. Puttaswamy v. Union of India.

SIbal also told that as far as non-state actors are concerned it is better that the Bill is formulated by the Parliament before the Court deals with it.

Justice Joseph enquired, if it is a live issue today, to which he got an affirmative reply.

Senior Advocate, Mr. K.V. Vishwanathan, who appeared on behalf of Internet Freedom Foundation informed the Bench that there was no regulation with respect to data protection, even though it has the positive obligation to regulate it.

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