Among the nine primary types of privacy that were elucidated, one
concerned ‗decisional privacy‘ reflected by an ability to make ―decisions in
respect of intimate relations‖. This would include the right to specify whom
to include and whom to exclude from one's circle. In his concurring opinion,
S.A. Bobde, J. explained as under:
―To exercise one‘s right to privacy is to choose and specify on
two levels. It is to choose which of the various activities that are
taken in by the general residue of liberty available to her she
would like to perform, and to specify whom to include in one‘s
circle when performing them. It is also autonomy in the
negative, and takes in the choice and specification of which
activities not to perform and which persons to exclude from
one‘s circle. Exercising privacy is the signalling of one‘s intent
to these specified others – whether they are one‘s coparticipants
or simply one‘s audience – as well as to society at
large, to claim and exercise the right. To check for the existence
of an actionable claim to privacy, all that needs to be considered
is if such an intent to choose and specify exists, whether
directly in its manifestation in the rights bearer‘s actions, or
otherwise.‖
65. R.F. Nariman, J. pointed out that in the Indian context, a fundamental
right to privacy would cover at least three aspects: firstly, the privacy
relatable to the physical body such as the right to move freely; secondly,
informational privacy which deals with a person‘s mind and recognized his
control over the dissemination of material that is personal to him; and
thirdly, ―the privacy of choice which protects an individual‘s autonomy over
fundamental personal choice‖. In a separate concurring opinion, Sanjay
Kishan Kaul, J. acknowledged that there could be invasion of privacy both
by State and non-State actors and the right can be legitimately exercised
against both.
66. Violation of one‘s rights could be by state or non-state actors. The
obligation to respect one‘s rights is placed both on state and non-state actors.
In Justice K.S. Puttaswamy (Retd.) v. Union of India (supra), the
concurring opinion of S.A. Bobde, J., noted that ―common law rights are
horizontal in their operation when they are violated by one‘s fellow man‖
and ―he can be named and proceeded against in an ordinary Court of law‖.
The position is no different under the Constitution of India. While some of
its provisions recognise the obligation of the State, some others recognise
the obligation of non-state actors as well. For e.g., Articles 14 and 15 (1)
speak of the state obligation of not denying equal protection of laws and of
non-discrimination on grounds of religion, place of birth etc. However,
Article 15 (2) talks of not subjecting a citizen to any disability, liability,
restriction or condition with regard to access to sops, public restaurants, use
of wells, tanks, bathing ghats and roads etc. and thus, places that obligation
on both state and non-state actors. Likewise, Article 17 which abolishes
untouchability and declares it to be an offence and Article 23 (1) that
prohibits trafficking in human beings and begar recognises the obligation
flowing therefrom of both state and non-state actors.
67. An impingement of the freedom of speech and expression could be
perpetrated by both the State and a non-State actor and an aggrieved person
could come to the Court seeking protection against such invasion whether by
the State or a non-State actor. Protection against an attack on the right of
life, liberty, privacy and dignity can be exercised not only against the State
but also against non-State actors. Article 21 places an obligation both on
state and non-state actors not to deprive a person of life, liberty, privacy and
dignity except in accordance with the procedure established by law.
68. In other words Articles 15 (2), 17, 19, 21 and 23 acknowledge the
horizontal nature of those fundamental rights. They can be enforced against
not just the State but non-state actors as well. The mere fact that the
enforcement of such rights might depend on State action or enforcement of
judicial orders by the State will not detract from their horizontal nature. The
horizontal dimension of these rights enables an aggrieved person to invoke
constitutional remedies to seek the protection and enforcement of such rights
against invasion by a non-state actor.
IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P. (CRL.) 1804/2017 & CM No. 9963/2017
Decided on: 18th April, 2018
DR. SANGAMITRA ACHARYA V STATE (NCT OF DELHI) & ORS
CORAM: JUSTICE S. MURALIDHAR
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