Facts of the case
Whatsapp submitted before the Court that the challenge mounted by it is jurisdictional in nature. The main contention of the said entity was that the issues identified by the CCI in the 26(1) order are identical to the ones looked into by the Government of India, the Delhi HC and the Hon’ble Supreme Court and therefore, the principle of ‘judicial discipline’ would demand that the CCI should refrain from passing any order into the matter. The company paid reliance on the law laid down in Vinod Kumar Gupta v. Whatsapp Inc. and Bharti Airtel case by the CCI and Hon’ble SC respectively to buttress its case.
The Court did make a reference to the lack of data protection framework in India. Even though the Hon’ble SC through the Puttuswamy judgment has recognised the ‘right to privacy’ as a fundamental right under the Indian constitution, the lack of a subsequent statutory framework and a dedicated regulator has led to certain gaps in the enforcement framework of it. The said judgment, even though not contributing to the statutory framework, does address the question of a dedicated regulator in the form of a competition regulator which can also look into data collection and processing policies of the Big Tech firms in a time-bound manner.