“Making a Mockery of Constitutionalism”: Supreme Court’s Strong Warning to WhatsApp Over Indians’ Data Privacy

Introduction: A Defining Moment for Digital Privacy in India

The Supreme Court of India has delivered one of its strongest judicial rebukes yet to a global technology platform, warning WhatsApp and its parent company Meta Platforms that the exploitation of personal data of even a single Indian citizen will not be tolerated. In sharp language, the Court described WhatsApp’s data-sharing practices as a “decent way of committing theft of personal information” and cautioned that the platform was “making a mockery of the constitutionalism of this country”.

The remarks came during the hearing of a batch of appeals concerning WhatsApp’s controversial 2021 Privacy Policy, which significantly expanded data sharing with Meta entities.

Background of the Case: WhatsApp’s 2021 Privacy Policy

The Triggering Event

In January 2021, WhatsApp introduced a revised privacy policy requiring users to consent to expanded data sharing with Meta companies as a condition for continued use of the platform. Users were presented with a “take-it-or-leave-it” choice, triggering widespread concern over consent, competition, and data protection.

Proceedings Before the Competition Commission of India

CCI’s Findings (November 2024)

The Competition Commission of India (CCI) held that WhatsApp had:

  • Abused its dominant position in the relevant market for Over-The-Top (OTT) messaging services

  • Forced users into coercive consent by conditioning access to WhatsApp on acceptance of the privacy policy

  • Violated Section 4 of the Competition Act, 2002, which prohibits abuse of dominance

The CCI imposed a ₹213.14 crore penalty and ordered WhatsApp to stop sharing user data with Meta for five years, along with several behavioural remedies to protect user choice.

NCLAT’s Intervention and Final Order

Interim Stay (January 2025)

The National Company Law Appellate Tribunal (NCLAT) initially stayed:

  • The monetary penalty

  • The five-year ban on data sharing

It reasoned that an immediate ban could disrupt WhatsApp’s free-to-use business model.

Final Judgment (November 4, 2025)

In its final decision, the NCLAT:

  • Upheld the ₹213.14 crore penalty imposed on WhatsApp

  • Set aside CCI’s finding that Meta had leveraged WhatsApp’s dominance to protect its advertising business

  • Restored key user-choice safeguards on a clarification plea filed by the CCI

  • Granted WhatsApp three months to comply with remedial directions

Appeals Before the Supreme Court

Parties to the Case

The Supreme Court is hearing appeals and cross-appeals filed by:

  • WhatsApp LLC

  • Meta Platforms Inc.

  • Competition Commission of India

The matter is being heard by a bench comprising:

  • Chief Justice of India Surya Kant

  • Justice Joymala Bagchi

  • Justice V.M. Pancholi

Supreme Court’s Observations: Privacy as a Constitutional Right

Strong Judicial Language

During the latest hearing, the Court made it unequivocally clear that:

  • Data sharing between WhatsApp and Meta amounts to unlawful exploitation of personal data

  • The so-called “opt-out” mechanism is too complex and illusory for ordinary citizens

The bench observed that even judges would find it difficult to fully understand the opt-out policy, raising serious doubts about informed consent.

Rejection of the “Free Service” Argument

Meta argued that WhatsApp is a free service and that users voluntarily consent to data sharing.

The Court firmly rejected this contention, holding that:

  • Users pay with their data

  • Personal data is the hidden cost of the platform

  • Free access cannot justify infringement of fundamental rights

The Solicitor General of India, Tushar Mehta, supported this view, stating that personal data is not merely collected but commercially exploited, and that in jurisdictions like Europe, data sharing is recognised as having monetary value.

Statutory Framework Involved

Competition Act, 2002

  • Section 4: Prohibits abuse of dominant position

  • WhatsApp was found dominant in the messaging services market

Digital Personal Data Protection Act, 2023

Meta relied on the DPDP Act to argue that a statutory framework now governs data use.

However, the Supreme Court noted that:

  • The DPDP Act is not yet in force

  • Pending legislation cannot legitimise current practices

  • Compliance timelines under the Act do not override constitutional protections

Constitutional Provisions Implicated

Article 21 – Right to Privacy

Following Justice K.S. Puttaswamy v Union of India (2017), the right to privacy is a fundamental right under Article 21.

The Court reiterated that:

  • Any invasion of privacy must satisfy legality, necessity, and proportionality

  • Coercive consent models fail constitutional scrutiny

Article 14 – Equality Before Law

The Court implicitly invoked Article 14 by highlighting how monopoly power eliminates genuine user choice, resulting in arbitrary and unfair treatment of consumers.

Judicial Precedents Referenced and Relevant

  • Justice K.S. Puttaswamy v Union of India (2017) – Recognition of privacy as a fundamental right

  • Google LLC v CCI (2023) – Market dominance cannot be leveraged to impose unfair conditions

  • Facebook v Bundeskartellamt (German Federal Cartel Office) – Data exploitation can constitute abuse of dominance

Behavioural Exploitation and Targeted Advertising

Beyond privacy, the Court flagged a deeper concern:

  • Tracking of user behaviour across platforms

  • Monetisation of data silos for targeted advertising

  • Correlation between private communications and subsequent advertisements

The Court emphasised that end-to-end encryption of messages does not negate behavioural surveillance.

Interim Directions Issued by the Supreme Court

The Court has:

  • Recorded Meta’s payment of the ₹213.14 crore penalty

  • Directed that the amount cannot be withdrawn until further orders

  • Restrained WhatsApp from sharing any user data with Meta in the interim

  • Impleaded the Ministry of Electronics and Information Technology (MeitY) as a party

  • Posted the matter for February 10 to consider interim directions

The bench made it clear that further hearings on merits would depend on Meta’s undertaking to halt data sharing entirely.

Conclusion: A Watershed Moment for Digital Rights in India

The Supreme Court’s intervention marks a turning point in India’s digital constitutionalism. By asserting that no commercial venture can operate at the cost of citizens’ fundamental rights, the Court has sent a clear message to Big Tech: market dominance cannot override constitutional freedoms.

The final outcome of this case will likely redefine the contours of data protection, competition law, and user consent in India’s rapidly evolving digital economy.

Location: Pune, Maharashtra, India

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