WhatsApp counsel Kapil Sibal assured the court that messages and voice calls over the platform were end-to-end encrypted which ensured complete privacy. However, he said since the contract between a user and WhatsApp was completely in the private domain, the policy could not be tested constitutionally by the SC and the petition filed by students Karmanya Singh Sareen and Shreya Sethi was not maintainable.
If Sibal mixed persuasion with legal points before a bench comprising Justices Dipak Misra, A K Sikri, Amitava Roy, A M Khanwilkar and M M Shantanagoudar, Facebook counsel K K Venugopal was more blunt. He said, "Those who find the new privacy policy irksome or violative of their fundamental rights, can quit. We've given full freedom to users to withdraw from Facebook and WhatsApp."
The bench was quick with a rejoinder that this would amount to forcing a citizen to make a negative choice. Appearing for the petitioners, Harish Salve said under the new policy, users were unwittingly made to give consent to both WhatsApp and Facebook and the latter could snoop on messages privately circulated between users of WhatsApp.
"They claim that this is being done to improve services to be given in future to users. Whether the snooping is done electronically or manually, the right to privacy of users gets breached. The government is duty bound to protect the fundamental right of every citizen. If it is failing, then the SC can surely issue appropriate directions," Salve said
Appearing for the Centre, additional solicitor general Tushar Mehta said the government was committed to protect the freedom and fundamental rights guaranteed under the Constitution and informed the court that a regulatory regime for internet based messaging and voice call platforms would soon be put in place. The bench fixed May 15 for preliminary hearing.
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