On 6th February, the Supreme Court had fixed 12th May as the date for final adjudication of this case. This was one of the three cases listed for hearing before a constitution bench during the Court’s summer vacation. During today’s hearing, the counsel for WhatsApp sought a fresh date citing his unavailability in May. The bench, comprising of the Chief Justice of India and Justice D.Y. Chandrachud, observed that it would be inappropriate for them to reschedule the date as it was ultimately going to be heard and decided by another bench of the Supreme Court.
This raised the question whether the matter was required to be heard by a constitution bench at all. It was argued on behalf of WhatsApp that the case was a simple contractual matter and needn’t be referred to a larger bench. On the other hand, Facebook’s counsel contended that if the petitioners intended to pursue their claim based on a fundamental right to privacy under Article 21, the case could not proceed in light of the pending constitutional reference. (The question of whether a fundamental right to privacy exists, and its scope was referred to a larger bench in 2015).
The petitioners’ counsel contended that the privacy claim in this case arose from Article 19(1)(a), as the ability to communicate and speak freely was an inherent aspect of privacy. As a result, the pending constitutional reference should not be considered a bar for this case to proceed.
The bench reiterated its discomfort with deciding any of these issues. The case has now been listed for hearing before a constitution bench on 18th April to determine if it can be heard by five judges, and for fixing the date for hearing.