WhatsApp questions the suitability of petitioner who filed a PIL against WhatsApp Pay

In an affidavit filed in the Supreme Court last night, WhatsApp has questioned the credentials and suitability of Good Governance Chambers (G2 Chambers), “a legal Think Tank”, that filed a PIL against WhatsApp Pay in the apex court on February 28, 2020. Filed by Brian Hennessy, the director and associate general counsel of WhatsApp, the affidavit argues that the PIL is not maintainable in court and calls G2 Chambers a “busybody” that, as an “unregistered Think Tank” [original emphasis], was just seeking “to create new barriers for WhatsApp Pay under the guise of enforcing fundamental rights”. MediaNama has seen a copy of the affidavit.

The PIL, filed by Sawtwik Chinta, part of G2 Chambers, on February 28, 2020, had asked the Supreme Court to not grant permission to WhatsApp to expand its digital payments system in India through UPI.

In its affidavit, WhatsApp has said that the beta version of WhatsApp Pay was launched on February 7, 2018 with NPCI’s approval and is limited to less than 1% of all its users in India. RBI and NPCI had green-lit the launch of WhatsApp Pay in early February 2020 and allowed it to expand its user base to 10 million users.

In the last hearing on May 13, Senior Advocate Kapil Sibal, on behalf of WhatsApp, had said that the company would not go ahead with its payments’ scheme without complying with all the regulations. At that time, the Supreme Court bench, constituting Chief Justice S.A. Bobde, and Justices Indu Malhotra and Hrishikesh Roy, had said that this PIL should not come in the way of the RBI granting WhatsApp any permissions.

WhatsApp, Facebook (represented by Senior Advocate Arvind Datar) and the Union of India (represented by Solicitor General Tushar Mehta) to file their reply affidavits. The bench had also tagged Delhi-based think tank Centre for Accountability and Systemic Change’s case against WhatsApp with this matter. CASC had petitioned the apex court in July 2018 about WhatsApp’s failure to comply with Indian laws, including its failure to appoint a grievance officer.

In this case, G2 Chambers is represented by Senior Advocate Krishnan Venugopal, Deepak Prakash, Yasir Rauf, Gaurav Sharma and the law firm Law Juno. ICICI Bank, with whom WhatsApp started its pilot service, is also listed as a respondent in the case.

WhatsApp’s arguments

G2 Chambers does not need to interfere in a process that has been going on for 2 years: The beta version of WhatsApp Pay was launched over two years ago and since then, WhatsApp has worked diligently with NPCI. “There is no occasion for any ‘busybody’ to intervene at this stage and superimpose their views in this process,” the affidavit reads.

G2 Chambers is unsuitable for pursuing this PIL since

Unregistered association: It is an unregistered association and thus, as per the Supreme Court, does not “possess a legal personality” and thus has no fundamental rights to enforce. The affidavit said the apex court, in the past, has “strictly scrutinized” and “banned” such associations from filing PILs.

Formed just two months before filing the PIL: It was formed just two months before the PIL was filed and has provided no proof of engaging in privacy-related public interest advocacy. WhatsApp has given the recent domain registration of G2 Chambers (on January 26, 2020) as evidence of this. It “appears to have waited two years to form its ‘think tank’ to file this PIL,” reads the affidavit. On its website, areas of focus include food, unemployment, healthcare and right to privacy. For WhatsApp, the right to privacy is a “clear outlier” and “potentially included for the sole reason of justifying this PIL”. G2C’s Twitter account was created in February 2020, while its Facebook page was created on March 29, 2020. The PIL was filed on February 28.

Might be involved with a similar complaint with the CCI: G2 Chambers has not revealed to the Supreme Court that it may be involved with a similar complaint with the Competition Commission of India. The CCI complaint, filed by Harshita Chawla on March 19, asks for the same relief (to stop WhatsApp Pay), is represented by the same law firm and was filed shortly after this PIL (Law Juno), and until recently, Law Juno and G2 Chambers shared the same address.

G2 Chambers and the law firm representing it are the same: The domain names for both G2 Chambers and Law Juno were registered on the same date — January 26, 2020. And the individual who appears to have registered for the G2 Chambers website and the Law Juno website has the same name — Sahil Baghla. A Sahil Baghla posted a job listing on LinkedIn for G2 Chambers and claims to be employed at Law Juno. MediaNama could also see that LinkedIn activity (available here, here, here).

As per the affidavit, an individual named Sahil Baghla was arrested in connection to a $300 million worth Bitcoin-based Ponzi scheme. This individual was charged with offences of criminal breach of trust and cheating by the Bombay High Court in July 2019. When we called Law Juno, we were told that Sahil Baghla is a part of Law Juno, and Law Juno is indeed representing G2 Chambers. We have reached out to them for more details.

No fundamental right has been violated and nor does the PIL say so. Thus, the PIL doesn’t make sense, and is not maintainable under Article 32.

Response of Good Governance Chambers

Deepak Prakash, who is one of the lawyers representing G2 Chambers, told MediaNama that WhatsApp is arguing only on the basis of locus standi of the PIL. “This is not an issue at all. There is no legal validity [to their arguments in the affidavit] at all. They were arguing the same thing in the court as well,” he said.

The real issue, Prakash said, “is data protection and sharing the financial data of millions of people”. “They have to answer on merit now. They have to say that we are not violating [the rules],” he said.

When we asked Prakash that maintainability would have to be established to proceed to merits of the case, he said, “That [maintainability] is the main argument of Mr Datar who appeared in the court. But the court completely rejected that argument. The CJI said that we cannot throw away a petition on the basis of locus standi.”

Prakash was not fully aware of the circumstances around Sahil Baghla and said as much. But he did ask what is the problem if the same person made the website for both G2 Chambers and Law Juno. “My CA is making case of lot of other lawyers, and other companies. He is using the same ID. What is the issue with that?” he said.

On whether or not the same case has been filed in the CCI, Prakash said that he would have to verify that, but even if it were filed, “what is the problem in that?” “Competition Commission of India deals with a different aspect; Supreme Court of India deals with a different aspect. One deals with fundamental rights, the other is about competition,” he said.

What did the PIL say?

The petition argued that WhatsApp “has been known to have failed to secure sensitive data of its users” and has also “failed to assume accountability and responsibility for the same”. As per the petition, WhatsAp has defaulted in securing data of users as per the localisation norms set forth by the RBI and NPCI, and by failing to have a dedicated app for UPI payments. Combining messaging and payments into one app is a “highly volatile model” and, as per the petition, puts sensitive user data at high risk. It has cited the NSO-Pegasus case, indexing links to group chats on Google, etc. as instances of lax cybersecurity in WhatsApp.

The PIL also said that WhatsApp Pay was willfully not complying with the UPI regulations and was a “direct threat to national security”. The PIL had also said that the $5.7 billion deal between Reliance Jio and Facebook would give Facebook and WhatsApp an “even larger user data”. Interestingly, Reliance Jio is not a respondent in this PIL, but CERT-In is.