PILs by their definition are usually filed in “public interest” against the state. The problem with this particular PIL, is that it was aimed against a private company and is essentially a grievance against the change of terms of a private contract between a service provider and its users. When you, the user, download and install a service like Whatsapp on a smartphone, you enter into a contract with the service provider. In the case of Whatsapp, the contract is not even governed by the Indian Contracts Act, 1872. Instead, Whatsapp’s terms of conditions are governed by the laws of the great state of California, one of the fifty states that constitute the United States of America. In fact that’s the case with most online service providers like Google and Facebook. These contracts usually require users to agree to sue before the court of choice mentioned in the contract. In the case of Whatsapp, a contractual clause allows Indian users to sue “exclusively in the United States District Court for the Northern District of California or a state court located in San Mateo County in California”.
Thus the preliminary question before the Delhi High Court in this PIL was whether private contracts could be subject to such PILs?
After tackling the contractual issue, the Court moves onto the issue of the right to privacy. Even on this point, the Court rebuffs the petitioner’s argument that privacy is a fundamental right. In pertinent part, the court states “the legal position regarding the existence of the fundamental right to privacy is yet to be authoritatively decided” as it is pending before the Supreme Court in the series of sub-judice petitions filed against the aadhar scheme.
Given there was no contractual or statutory rights were being violated, the court concedes that it has no jurisdiction to admit the PIL, stating that “it appears to us that the issue sought to be espoused in the present petition is not amenable to the writ jurisdiction under Article 226 of the Constitution of India”.
Yet within two paragraphs, of the above statement admitting that it lacks jurisdiction, the court makes a leap of logic by passing three orders – the first restraining Whatsapp from sharing with Facebook the information of users who deleted their account, the second restraining Whatsapp from sharing information, from before September 25, of those users who continued with Whatsapp and the third, directions to the government to consider a regulatory framework for services such as Whatsapp.
So why then did the High Court pass such orders and spend all this time and effort to write a 15 page judgment? Was it to save face for the petitioners? Is this how overworked High Courts should be spending their time dealing with frivolous litigation? More worryingly, has the High Court now set a precedent for PILs to be admitted against private companies on issues pertaining to privacy.