WhatsApp performing a public function, hence accountable, argues petitioners’ counsel
The issue of maintainability of the petition itself dominated the proceedings in the Supreme Court, after Whatsapp privacy matter hearing resumed again post-lunch. The counsel for the petitioner, Madhavi Divan argued that the respondents (WhatsApp) could escape scrutiny on the ground that the plea could not be accepted as the conversation between two individuals on WhatsApp was outside the ambit of fundamental rights.
The top court was examining whether the privacy policy adopted by WhatsApp violated the right to privacy as well as inflicted constraints on right to free speech, both fundamental rights. A five-judge constitution bench was hearing a petition filed by Karmanya Singh Sareen and Shreya Sethi.
Venugopal representing the respondents tried to assuage the concern of the petitioners by submitting that there was a complete scheme in place to cover the issues raised by them and it also provides for punishment and compensation in case of any violation.
Additional Solicitor General, Tushar Mehta once again submitted that the Centre was committed to the user’s right to freedom of speech. He said that he would not argue on whether the writ petition was maintainable or not.
But Justice Dipak Misra made it clear that the writ petition was very much maintainable against the respondents and could not be challenged just because the conversation was between two private parties.
Venugopal submitted cases to bolster his argument that the writ petition was not maintainable as no public action was involved. However, the counsel for the petitioner Madhavi Divan objected and said that though the messages were private, the platform was a public digital highway which was performing a public duty, and thus the writ was maintainable.
Divan argued that the Supreme Court had earlier accepted that the telecom service providers render public function. As WhatsApp doesn’t have its own network, doesn’t own wavelengths but relies completely on telecom service providers, it too was discharging a public function, Divan claimed.
Arguments on maintainability came to an end. The matter was listed for July 21, 2017 for further arguments on merits.
—India Legal Bureau