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He also pointed out that a previous Constitution bench of the court had already heard the petitions on maintainability.
Solicitor General of India, Tushar Mehta provided the Union Government’s stand, that Indian users of WhatsApp cannot be discriminated against other users of the app. He averred that the government is cognizant of the situation, and working on a personal data protection bill to address it. He therefore requested the court to keep the matter on hold till the Bill is in place. To this, the bench quipped that if the government was keen on having a legislation, it could have put it in place.
The bench stated at this point that since India has the highest number of WhatsApp users among all countries in the world, the advantages and disadvantages qua this largest group is the primary matter here. To this, Sibal responded that the issue is not whether Indian users are the largest group or not; it is on the law framed by the legislature in each country.
Mehta averred that WhatsApp must comply with the laws of India, and alleged that the company had violated Indian law on multiple occasions previously. He stated that WhatsApp must treat Indians equally with global users.
The bench contemplated whether to list the matter for January, to give the government ample time to put a data protection law in place so that the court doesn’t have to judicially interfere, or take it up at the earliest in November. It ultimately chose the former option, listing the matter for hearing for final disposal on January 17, 2023, and directing that pleadings in the matter be filed by December 15.
It observed, “The conduct of WhatsApp in sharing of users’ personal data with other Facebook companies, in a manner that is neither fully transparent nor based on voluntary and specific user consent, appears prima facie unfair to users.” This order was challenged by Facebook and WhatsApp before the Delhi High Court, but a single-judge bench of the High Court dismissed their petition last month, paving the way for the CCI DG to probe the policy.
In May last year, WhatsApp filed an appeal against this order before a division bench of the High Court. The division bench of the high court had dismissed this appeal last month.