Introduction Now, In India the concept of rights has broadened; and nowthe right to life mean right to enjoy life, and right to be let alone. “Man’shouse is a castle”, these proverb is now getting as legal recognition as Rightto Privacy.
Human being now a days are in need to autonomy and control overtheir confidential data. This need is in-grained in every human being and thisbecomes the fundamental right to privacy. This is not the right againstphysical restraint, but against the psychological restraint.
United States,United Kingdom, India, and at International level UDHR consider as thefundamental right. Eminent scholars and judges found the need of this right.Right to Privacy:In Right to Privacy first of allwe need to know the meaning of privacy. According to the Black’s law dictionaryPrivacy means “right to be let alone; this means right of the person to livefree from any unwanted disturbance and publicity; right to live without anyinterference of public in the matters which others is not necessarily involved.
Article 211of the constitution of India states that, “No person shall be deprived of hislife or personal liberty except according to procedure established by law.”After reading Article 21, it has been interpreted that the term “life” makesthe man’s life meaningful and worth living. In 2011, a bill has been passedknown as “Privacy Bill” and the bill says, “Every citizen of India have rightto privacy and confidentiality of information or communication made to. Thisincludes personal correspondence, telephonic conversation, massages, postal,mail and other mode of communication. This right also include confidentiality ofhis personal as well as family life. Protection of his good name and honour,confidentiality of his banking and financial transaction, medical and legalinformation and give protection to the data of individual which others must notnecessarily know.
The Verdict Faith inIndian Judiciary restoredOn 24th August 2017, anine-judge bench of the Supreme Court has ruled that Indians enjoy thefundamental right to privacy that is intrinsic part of right to life andliberty and comes under article 21 of the constitution. Court delivered its verdict in the case ofJustice K.S. Puttaswamy vs The Union of India2,with one accord affirmed that tight to privacy is a fundamental right under theconstitution. This verdict brought an end to constitution battle that had begun2 years before, on August, 2015.
And The Supreme Court overruled the judgementgiven in the case of M.P. Sharma vs Satish Chandra3,and the Kharak Singh vs State of U.P4,in both the case judgement held that right to privacy in not protected underthe constitution.Impact of Judgement on Non State BodiesThe right to privacy verdict willobviously have the definite indirect impact on all the companies collecting thedata.
One is through the applicability of Data protection law and second isthrought the application in the case of Karmanya Singh Sareen vs Union of India5.So, here the question arise is whether a private company can be taken to courtor not for the violation of fundamental right to privacy?Initially Delhi High court upheldthat there is no fundamental right to privacy will applicable here in WhatsApp’scase, but, now as right to privacy came under fundamental right, so, can itwill be applicable on private company.When we consider the applicationof fundamental right to privacy on non-state company/actor, the main objectionwhich comes into mind is that fundamental rights are applicable only on state.This concept has been seen through my judgements of High court and Supreme Court.And when we consider other fundamental rights like right to equality which saysthat, “The state shall not deny to any person equality before the law or theequal protection of the laws within the territory of India.”Article 12 of the constitution defines stateand includes the government, the parliament, the legislature and localauthorities. But, now it has been expended to include other corporation bodyestablished by statute, a private body which government can exercise control.
This may include bodies like ONGC, LIC and so on.Here the question arise is that, “whether theWhatsApp performing a public function or not?” Therefore, on the expansion ofdefinition of state is that a writ can be file against a body which isperforming public function. WhatsApp is performing such function when itprovides communication service to over 200 million people in India. Therefore, WhatsAppwill be ……………………………………………………Looking at the alternative solution,Fundamental rights of the constitution does not expressly restrict theprotection of fundamental rights against violation by state only. In fact,Article 21, read as “No person shall be deprived of his life or personalliberty except according to the procedure established by law”.
Thus, there isnothing in this article which restricts the state actors only. Therefore, froma bare reading of this article, it can be argued that constitution is no waybars the enforcement of the fundamental rights against non-state actors.In fact, in the landmark case of Vishaka vsState of Rajasthan6stated that the protection of fundamental rights of working women underArticles 14, 19, and 21 is not only of the state but of the non-state actorstoo. This case indicates that the Supreme Court has not restricted the issuanceof writ against the state only.
There thus possibilities are there of enforceabilityof FR’s against the private bodies too. A direct impact of the right toprivacy verdicts might therefore limited, but, very much possible. 1 Dr. J.N.
Pandey, Constitutional Lawof India, 43rd ed., Central Law Agency, 20062 (2015) 8 SCC 7353 AIR 1954 SC 3004 AIR 1963 SC 12955 (2017) 10 SCC 6386 (1997)6 SCC 241