It’s interesting to see the contours of the various arguments before the Supreme Court on whether the right to privacy comes under the ambit of fundamental rights. While individual information contained in the Aadhaar card provides the immediate context of the hearing before the Supreme Court, the constitutional validity of the Aadhaar card is not being argued. As the Chief Justice of India has clearly pointed out, the constitution of the special nine-member bench is to rule whether the right to privacy can be considered a fundamental right. Arguments about the Aadhaar card will continue to be heard before the five-member bench of the Supreme Court that has already been constituted.
While the government counsel has contended that the right to privacy has evolved through common law rights and practices and even judicial pronouncements, it’s not a fundamental right. He stated that while privacy may be fundamental, certain aspects or some sub-strata of the right to privacy could not be fundamental. Thus the right to privacy could not wholly be considered as a fundamental right.
As it’s not just the Aadhaar card that is being considered here but an important constitutional issue that is being decided, it would be interesting to look at the right to privacy from a historical perspective.
Right to privacy
A seminal article titled “The Right to Privacy”, which was written by two young lawyers from Boston, Samuel Warren and Louis Brandeis, and published in the Harvard Law Review in December 1890, enunciated the right to privacy. It was to have a wide and far-reaching impact. The noted American legal scholar, Roscoe Pound, termed the article as nothing less than adding “a chapter to our law”. It is important to note that Warren and Brandeis did not coin the doctrine of the right to privacy, but clearly stated the principles under which this right could be exercised, and also pointed to the dangers of curbing this right. More importantly, they elaborated on the right to be “let alone”. Let alone is different from being “left alone”, for the latter means something was within your grasp and you left it. Let alone means a certain immunity from encroachment.
Warren and Brandeis were reacting to a historical situation in the U.S. where a number of agencies were threatening the individual’s right to privacy. Paradoxically, this was not only the government, for the government had not yet assumed the overarching power as in later years, but from agencies like the press — more importantly, the newspaper. Newspaper barons, the forerunners of the tabloid press, paid their reporters to dig up dirt and gossip and no aspect of the private lives of prominent individuals was taboo.
The newspapers justified this invasion of privacy by saying their readers wanted this sort of news, but the ones affected were dismayed and angry. A number of lawsuits suing for defamation and libel came up before the courts. Warren and Brandeis’s article enunciated the essential principles of the right to privacy and clarified the basis on which these cases could be tried. Defamation was more clearly defined and the law on criminal libel was, in fact, replaced by the law on privacy.
Warren and Brandeis had wanted the legal system to recognise the right to privacy because when information about an individual’s life is made available to others to use and misuse, it tends to injure the individual’s personality and self-esteem — his estimate of himself.
There was an immediate context too for them to write the article. When they graduated from the Harvard Law School, Brandeis stood first and Warren was second in class. They set up a law firm in Boston, ‘Warren & Brandeis’, from 1879-89, and this was the order in which they authored the article though most of the writing was done by Brandeis. Brandeis was to later serve as a distinguished judge of the U.S. Supreme Court.
Samuel Warren was the son of a wealthy paper manufacturer and a well-established member of the Boston elite. His marriage to a leading senator's daughter further consolidated his position among the elite. On graduating from Harvard, Warren set up his law practice and a year later, invited Brandeis to join his practice as a partner. In contrast, Louis Brandeis was more of an ‘outsider’. He was the son of Jewish immigrants who had come from Bohemia. The family was relatively impoverished when Brandeis secured admission to the Harvard Law School. It was Brandeis’s academic brilliance that enabled him to cope with the snobbery in Harvard and later it was his friendship with Warren that gained him a limited acceptance in Boston’s social circles.
But it was these very social circles that were fair game for the newspapers. Warren was shocked one evening to find all the intimate details of his family life splashed in the pages of the Saturday Evening Gazette . Sensing the family anguish, Warren and Brandeis resolved to do something. The Harvard Law Review was then only in its fourth year of publication. Brandeis was a trustee and treasurer of the Review . Both he and Warren had contributed articles to the second and third issues of the Review . The Review seemed a logical place in which to place their article on the right to privacy.
It wasn’t just Warren and Brandeis, but two literary figures too who were greatly concerned with the right to privacy at the time. Henry James had coined the term ‘Newspaperisation’, and in his book, The Reverberators, published in 1888, he described the activities of a predatory news reporter for whom a story was a story, no holds barred. In the Bostonians published even earlier in 1886, James describes the activities of a society reporter: “All distinction between the person and the writer had ceased to exist, the writer diminished.”
Even earlier in the nineteenth century, the author James Fenimore Cooper had vigorously argued against the press’s consistent intrusions into the individual’s personal life. In The American Democrat first published in 1838, Cooper had argued, “If newspapers are useful in overthrowing tyrannies, it’s only to establish a tyranny of their own. The press tyrannises over public men, the letters, the arts, the stage and even over private life”. Cooper had sued newspapers over publishing details of his personal life on charges of criminal libel. Paradoxically, this right of criminal libel had withered away in American jurisprudence by the time Warren and Brandeis’s article was published in 1890.
Drawing parallels
There are many interesting similarities in Warren and Brandeis’s article and the arguments being put before the Supreme Court today. They had argued that the individual’s right to control his personality and self-esteem was an important aspect of, and a necessary condition for, the individual’s right to life. This is an interesting parallel with the right to life guaranteed under Article 21 of the Indian Constitution.
In propounding a legal theory for protecting the right to privacy, Warren and Brandeis believed that there was something inherently private that prevented it from being made public. Overstepping the bounds of propriety and decency and intruding into the personal and intimate would almost make the Biblical prophecy come true: what is whispered in the closet shall be proclaimed from the housetops.
Warren and Brandeis seemed to be prophetic too. They specifically mentioned technological progress, the modern invention of devices, and the relentless march of civilisation itself as contributing to the breakdown of the distinction between public and private.
All the more reason they would say, if they could but look down and follow the debates in the court, that we must secure to the individual that what is intrinsic and intimate to his personality, and if restrictions are to be placed, let them be reasonable and stand scrutiny under law.
Sridhar Balan is a senior professional in the publishing industry and has worked with Oxford University Press and Ratna Sagar P. Ltd.
