right to privacy


Now, In India the concept of rights has broadened; and now
the right to life mean right to enjoy life, and right to be let alone. “Man’s
house is a castle”, these proverb is now getting as legal recognition as Right
to Privacy. Human being now a days are in need to autonomy and control over
their confidential data. This need is in-grained in every human being and this
becomes the fundamental right to privacy. This is not the right against
physical restraint, but against the psychological restraint. United States,
United Kingdom, India, and at International level UDHR consider as the
fundamental right. Eminent scholars and judges found the need of this right.

Right to Privacy:

In Right to Privacy first of all
we need to know the meaning of privacy. According to the Black’s law dictionary
Privacy means “right to be let alone; this means right of the person to live
free from any unwanted disturbance and publicity; right to live without any
interference of public in the matters which others is not necessarily involved.
Article 21[1]
of the constitution of India states that, “No person shall be deprived of his
life or personal liberty except according to procedure established by law.”
After reading Article 21, it has been interpreted that the term “life” makes
the man’s life meaningful and worth living. In 2011, a bill has been passed
known as “Privacy Bill” and the bill says, “Every citizen of India have right
to privacy and confidentiality of information or communication made to. This
includes personal correspondence, telephonic conversation, massages, postal,
mail and other mode of communication. This right also include confidentiality of
his personal as well as family life. Protection of his good name and honour,
confidentiality of his banking and financial transaction, medical and legal
information and give protection to the data of individual which others must not
necessarily know.

The Verdict [Faith in
Indian Judiciary restored]

On 24th August 2017, a
nine-judge bench of the Supreme Court has ruled that Indians enjoy the
fundamental right to privacy that is intrinsic part of right to life and
liberty and comes under article 21 of the constitution.  Court delivered its verdict in the case of
Justice K.S. Puttaswamy vs The Union of India[2],
with one accord affirmed that tight to privacy is a fundamental right under the
constitution. This verdict brought an end to constitution battle that had begun
2 years before, on August, 2015. And The Supreme Court overruled the judgement
given in the case of M.P. Sharma vs Satish Chandra[3],
and the Kharak Singh vs State of U.P[4],
in both the case judgement held that right to privacy in not protected under
the constitution.

Impact of Judgement on Non State Bodies

The right to privacy verdict will
obviously have the definite indirect impact on all the companies collecting the
data. One is through the applicability of Data protection law and second is
throught the application in the case of Karmanya Singh Sareen vs Union of India[5].
So, here the question arise is whether a private company can be taken to court
or not for the violation of fundamental right to privacy?

Initially Delhi High court upheld
that there is no fundamental right to privacy will applicable here in WhatsApp’s
case, but, now as right to privacy came under fundamental right, so, can it
will be applicable on private company.

When we consider the application
of fundamental right to privacy on non-state company/actor, the main objection
which 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 says
that, “The state shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India.”

Article 12 of the constitution defines state
and includes the government, the parliament, the legislature and local
authorities. But, now it has been expended to include other corporation body
established 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 the
WhatsApp performing a public function or not?” Therefore, on the expansion of
definition of state is that a writ can be file against a body which is
performing public function. WhatsApp is performing such function when it
provides communication service to over 200 million people in India. Therefore, WhatsApp
will be ……………………………………………………

Looking at the alternative solution,
Fundamental rights of the constitution does not expressly restrict the
protection of fundamental rights against violation by state only. In fact,
Article 21, read as “No person shall be deprived of his life or personal
liberty except according to the procedure established by law”. Thus, there is
nothing in this article which restricts the state actors only. Therefore, from
a bare reading of this article, it can be argued that constitution is no way
bars the enforcement of the fundamental rights against non-state actors.

In fact, in the landmark case of Vishaka vs
State of Rajasthan[6]
stated that the protection of fundamental rights of working women under
Articles 14, 19, and 21 is not only of the state but of the non-state actors
too. This case indicates that the Supreme Court has not restricted the issuance
of writ against the state only. There thus possibilities are there of enforceability
of FR’s against the private bodies too. A direct impact of the right to
privacy verdicts might therefore limited, but, very much possible.

[1] Dr. J.N. Pandey, Constitutional Law
of India, 43rd ed., Central Law Agency, 2006

[2] (2015) 8 SCC 735

[3] AIR 1954 SC 300

[4] AIR 1963 SC 1295

[5] (2017) 10 SCC 638

[6] (1997)6 SCC 241