Musings on Right to Free Speech & Privacy Narasimhan Vijayaraghavan 2- Origins & Debates in Constituent Assembly Any mention of the phrase ‘Right to Privacy’ in any democratic jurisdiction

Musings on Right to Free Speech & Privacy
Narasimhan Vijayaraghavan

2- Origins & Debates in Constituent Assembly

Any mention of the phrase ‘Right to Privacy’ in any democratic jurisdiction conjures up the magic of the Havard Law Review article. The Right to Privacy” is that famous article written by Samuel Warren and Louis Brandeis, published on Dec 15,1890 in Havard Law Review, comprising 7222 words, excluding citations.

Warren and Brandeis begin their article by introducing the fundamental principle that “the individual shall have full protection in person and in property.” They acknowledge that this is a fluid principle that has been reconfigured over the centuries as a result of political, social, and economic change.

The first three paragraphs of the essay describe the development of the common law with regard to life and property. Originally, the common law “right to life” only provided a remedy for physical interference with life and property. But later, the scope of the “right to life” expanded to recognize the “legal value of sensations.” For example, the action of battery —a protection against actual bodily injury—gave rise to the action of assault- fear of actual bodily injury. Similarly, the concept of property expanded from protecting only tangible property to intangible property.
Beginning with the fourth paragraph, Warren and Brandeis explain the desirability and necessity that the common law adapt to recent inventions and business methods—namely, the advent of instantaneous photography and the widespread circulation of newspapers, both of which have contributed to the invasion of an individual’s privacy. Warren and Brandeis take this opportunity to excoriate the practices of journalists of their time, particularly aiming at society gossip pages.

The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle.

The authors state the purpose of the article: “It is our purpose to consider whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual; and, if it does, what the nature and extent of such protection is.”

First, Warren and Brandeis examine the law of libel and slander (forms of defamation) to determine if it adequately protects the privacy of the individual. The authors conclude that this body of law is insufficient to protect the privacy of the individual because it “deals only with damage to reputation.” In other words, defamation law, regardless of how widely circulated or unsuited to publicity, requires that the individual suffer a direct effect in his or her interaction with other people. The authors write: “However painful the mental effects upon another of an act, though purely wanton or even malicious, yet if the act itself is otherwise lawful, the suffering inflicted is ‘damnum absque injuria’ ( a loss or harm from something other than a wrongful act and which occasions no legal remedy).

Second, in the next several paragraphs, the authors examine intellectual property law to determine if its principles and doctrines may sufficiently protect the privacy of the individual. Warren and Brandeis concluded that “the protection afforded to thoughts, sentiments, and emotions, expressed through the medium of writing or of the arts, so far as it consists in preventing publication, is merely an instance of the enforcement of the more general right of the individual to be let alone.”
Warren and Brandeis then discuss the origin of what they called a “right to be let alone”. They explain that the right of property provides the foundation for the right to prevent publication. But at the time the right of property only protected the right of the creator to any profits derived from the publication. The law did not yet recognize the idea that there was value in preventing publication. As a result, the ability to prevent publication did not clearly exist as a right of property.

The authors proceed to examine case law regarding a person’s ability to prevent publication. Warren and Brandeis observed that, although the court in Prince Albert v. Strange that its decision was based on the protection of property, a close examination of the reasoning reveals the existence of other unspecified rights—that is, the right to be let alone.

Got it. It all boils down to the ‘right to be let alone’. It has resonated ever since, across all democratic traditions. Our framers were not unaware of this. They debated and discussed and chose not to specifically provide for Right to Privacy as a specific fundamental right. B N Rau and Alladi Krishnaswamy Aiyar, prominent members of the Advisory Committee on Fundamental Rights with a huge hand in the Drafting Committee also ,both, were strongly opposed to RTP being included as a fundamental right.

B N Rau, the consultant to the Constituent Assembly was ‘concerned that RTP may impact the investigative powers of police authorities’. Alladi with huge practice in civil litigation felt that ‘RTP may elevate the immunity to state security papers to private correspondences as well and harm private civil litigations’. Their persuasive powers prevailed. And Bhimrao Ambedkar as a member of the Advisory Committee and head of the Drafting Committee did not differ . As ‘the most influential member’ in the making of our Constitution, without Ambedkar behind the exclusion, it may not have happened as it did.

On 30th April 1947, Somnath Lahiri proposed to make the right to privacy of correspondence a fundament right. However, his proposal did not receive any traction. A year later Kazi Syed Karimuddin moved to include the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures in Article 20 (Draft Article 14) of the Constitution. He cited examples of the American and Irish Constitution and reminded the Assembly of Ambedkar’s similar proposal to the Sub-Committee of Fundamental Rights. Karimuddin was also motivated to secure the rights of the Muslim minority community from arbitrary searches. He pointed out that post-partition the State agencies, mired in prejudices, treated Muslims like ‘criminals’. This amendment was defeated in the Assembly.

It was not until 24th August,2017 in the landmark verdict in Justice K. S. Puttaswamy (Retd.) v. Union Of India of the Supreme Court of India that the right to privacy was elevated as a fundamental right under Articles 14, 19 and 21 of the Constitution of India. It may suffice to confine our reference to the concurring verdict of Justice D Y Chandrachud, on how/why RTP became a fundamental right. The extracted portions succinctly tell us where we are on RTP, after 68 years of the date on which our Constitution was adopted on 26th Nov,1949.

“ The doctrinal foundation of the right to privacy in India rests on the trilogy of decisions in M P Sharma v. Satish Chandra, Kharak Singh v. State of U.P and Govind v. State of Maharashtra. Of these the decision in M.P. Sharma does not adjudicate on constitutional protection of a privacy right. Further, Kharak Singh, while rightly acknowledging that ‘life’ under Article 21 is not a right to “animal existence”, suffers from an internal inconsistency that where on the one hand the regulation permitting domiciliary visits was struck down on the rationale of privacy without expressly using the term, on the other it recorded the absence of constitutional protection of privacy. These two contradicting views cannot co-exist and the two decisions, to the extent that they hold that the Constitution of India does not protect privacy, are overruled.

Fundamental rights emanate from basic notions of liberty and dignity. Although Article 19 expansively enumerates some facets of liberty, this does not denude Article 21 of its wide scope and ambit. Privacy is a concomitant of an individual’s right to exercise control over his own personality and finds its origin in the notion that certain natural or inherent rights are inseparable from the human personality. Like other rights in Part III of the Constitution, privacy too cannot be an absolute right and its violation must, in addition to the test of due process and procedure established by law, also factor in legitimate State interests.

The right to privacy imposes on the State a duty to protect the privacy of an individual, corresponding to the liability that is to be incurred by the state for intruding the right to life and personal liberty. The right to life and liberty are inalienable to human existence – not bounties granted by the state, nor creations of the Constitution. No civilized state can contemplate an encroachment upon them without the authority of law. ADM Jabalpur v. S S Shukla is overruled to the extent that it held that the aforesaid rights may be surrendered in an emergency.

Judicial recognition of the constitutional protection of a privacy right does not in any manner amount to usurpation of a legislative function, as the right is not independent of the liberties guaranteed under Part III and emerges from the concepts of liberty and dignity alluded to in the Preamble.

Privacy recognises the ability of individuals to control vital aspects of their lives and safeguards the autonomy exercised by them in decisions of personal intimacies, matters of home and marriage, the sanctity of family life and sexual orientation, all of which are at the core of privacy.

The Constitution must evolve to meet the aspirations and challenges of the present and the future. In an age where information technology governs virtually every aspect of our lives, the Courts must impart meaning to the concept of individual liberty, particularly where an overarching presence of State and non-State entities regulates aspects of social existence which bear upon the freedom of an individual. Every individual irrespective of social or economic status is entitled to the intimacy and autonomy which privacy protects.

Now that we are done and dusted, even if only skimming the surface of dancing around the fringes, with reference to RTP origins and the debates in the Constituent Assembly too, and where we are today, we can get real with our story telling. Iconic or stand out verdicts on Right to Free Speech & Privacy.

Let the stories begin.