However, the constitutional bench, consisting of Justices Dipak Misra, A K Sikri, Amitava Roy, A M Khanwilkar and M M Shantanagoudar, replied stating that this would be akin to forcing users to make a negative choice. Harish Salve, who is appearing for the petitioners, said that users unwillingly gave consent to Facebook to read messages privately circulated between users of WhatsApp.
We reached out to WhatsApp and Facebook regarding the ongoing case and a spokesperson who said that the company cannot comment on a matter that is sub judice, but shared two pieces of information. The first piece of information was a quote from their blog which stated, “Your messages are encrypted by default, which means you're the only people who can read them. Even as we coordinate more with Facebook in the months ahead, your encrypted messages stay private and no one else can read them. Not WhatsApp, not Facebook, nor anyone else. We won’t post or share your WhatsApp number with others, including on Facebook, and we still won't sell, share, or give your phone number to advertisers.”
The spokesperson also said that the company had given people a choice on how Facebook could use their data. “[Existing WhatsApp users] can choose not to share your account information with Facebook to improve your Facebook ads and products experiences.”
It should be noted that they only way to make the choice was by heading to Settings > Account > Share my account info. Further, the paget still mentions that "Facebook family of companies will still receive and use this information for other purposes” regardless of their choice.
During the court case, the Center also weighed in and said that the government was planning a regulatory regime for internet based messaging and voice call platforms. It also noted that it was committed to protecting the freedom and fundamental rights guaranteed under the Constitution.
We’ve reached out to WhatsApp and facebook for further comments and will bring you an update as soon as possible.