Musings on the Life & Times of Chinnaswamy Subramania Bharathi Narasimhan Vijayaraghavan 36

Musings on the Life & Times of Chinnaswamy Subramania Bharathi
Narasimhan Vijayaraghavan
36

Chellamma was both shocked and not so shocked, at the authoritarian ways of the British forces and the civi administration. The Collector Ashe’s murder appeared to have added to their resolve to put down any Swadeshi instincts, with a ruthless hand. But the shock was that the British brazenness travelled across to the French occupied Pondicherry too. In Kadayam, Chellamma’s mother a housewife, with no political instincts was not beyond being followed by intelligence men. She could not handle it and stopped visiting temples which was her only hope, for solace and calmness in the stormy clime the family was faced with.

Chellamma continued, “It was in these troubling times that when I was away in Kadayam, I received this inflammatory information. Bharathi was as usual out on his public calls,visiting friends. Taking advantage of his absence and the absence of any other family members, security forces of the French police at the instigation of the British, broke into the house through the neighbour’s premises. A blatant breach of all cannons of fundamental rights of a private citizen. Right to Privacy was raped in broad daylight. Not for nothing”.

Security forces acted like goondas with no warrant to enter, surreptitiously entered Chellamma’s home and ‘stole Bharathi’s papers, letters, private and confidential correspondences, autographed copies of Bharathi’s works and whatever they assumed may be worth their while. They ransacked the house. Turned it upside down. They deliberately messed up everything to leave behind a sure and strong message that ‘they’ were there and more was coming. When Bharathi returned home he was greeted with this mess. He could not believe his eyes, that a private citizen’s home was broken into. And by those vested with power and authority to manage ‘law and order’. ‘They’ had taken law into their own hands. The ordinary citizen was not safe in his own castle. His personal papers were scattered, many torn and several taken away. -Ayyo,Ayyo endru Padaithathu Bharathiyin Manam. Thudi Thudithhu Poonar.( Bharathi’s peace was shattered. He anguished in pain and agony on what had come of his privacy, his basic and inviolable right).

Bharathi exclaimed, ‘Oh my Parasakthi, what has come of this nation. I am shaken like a fish at the end of a bait with a sharp hook.Don’t these rascals know that a law abiding citizen was the emperor in his castle. Is it a victory for these big ruffians to break into a small man’s little home? It is utter, utter shame.Is the law and order apparatus not meant to protect the citizens from each other’s violence and proceed against those who were in breach of law? Don’t these beasts know it is violative of all basic human rights to break into a commoner’s home and when he is not in his castle? What an achievement for the bravery of these animals! Most praiseworthy, typifying their proud culture! And to think that these forces went away empty handed, as nothing, just nothing of the incriminating kind they could lay their hands on. As none was available. As we were proud, loving, loyal soldiers of my beloved Bharat Mata and not hateful members of any insidious force”. Bharathi poured out at his eloquent best.

Bear with me for a digression. One cannot miss this momentous occasion. The natural instincts of a lawyer, as a keen student of constitutional law, there is the inevitable temptation and inclination to pivot to the faculty of Right to Privacy. Bharathi was fuming with contempt at the invasion of his ‘right to be let alone’. Every syllable of his anger laced with anguish constitutes the constitutional core of Louis Brandeis’ 1890 vintage paper published in Harvard Law Review. A perfect segway to go visiting Louis Brandeis with an abridged version, which would definitely find a place here.,

The Right to Privacy”Warren and Brandeis, Harvard Law Review.
Vol. IV December 15, 1890 No. 5.

That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the new demands of society. Thus, in very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi et armis. Then the “right to life” served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the individual his lands and his cattle. Later, there came a recognition of man’s spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life, — the right to be let alone; the right to liberty secures the exercise of extensive civil privileges; and the term “property” has grown to comprise every form of possession — intangible, as well as tangible.

This development of the law was inevitable. The intense intellectual and emotional life, and the heightening of sensations which came with the advance of civilization, made it clear to men that only a part of the pain, pleasure, and profit of life lay in physical things. Thoughts, emotions, and sensations demanded legal recognition, and the beautiful capacity for growth which characterizes the common law enabled the judges to afford the requisite protection, without the interposition of the legislature.

Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right “to be let alone” [10] Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that “what is whispered in the closet shall be proclaimed from the house-tops.” For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons;[11] and the evil of invasion of privacy by the newspapers, long keenly felt, has been but recently discussed by an able writer.[12] The alleged facts of a somewhat notorious case brought before an inferior tribunal in New York a few months ago,[13] directly involved the consideration of the right of circulating portraits; and the question whether our law will recognize and protect the right to privacy in this and in other respects must soon come before our courts for consideration.
Of the desirability — indeed of the necessity — of some such protection, there can, it is believed, be no doubt. 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 intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury. Nor is the harm wrought by such invasions confined to the suffering of those who may be the subjects of journalistic or other enterprise. In this, as in other branches of commerce, the supply creates the demand. Each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion to its circulation, results in the lowering of social standards and of morality. Even gossip apparently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance. Easy of comprehension, appealing to that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors, no one can be surprised that it usurps the place of interest in brains capable of other things. Triviality destroys at once robustness of thought and delicacy of feeling. No enthusiasm can flourish, no generous impulse can survive under its blighting influence.

It would doubtless be desirable that the privacy of the individual should receive the added protection of the criminal law, but for this, legislation would be required.[53] Perhaps it would be deemed proper to bring the criminal liability for such publication within narrower limits; but that the community has an interest in preventing such invasions of privacy, sufficiently strong to justify the introduction of such a remedy, cannot be doubted. Still, the protection of society must come mainly through a recognition of the rights of the individual. Each man is responsible for his own acts and omissions only. If he condones what he reprobates, with a weapon at hand equal to his defence, he is responsible for the results. If he resists, public opinion will rally to his support. Has he then such a weapon? It is believed that the common law provides him with one, forged in the slow fire of the centuries, and to-day fitly tempered to his hand. The common law has always recognized a man’s house as his castle, impregnable, often, even to his own officers engaged in the execution of its command. Shall the courts thus close the front entrance to constituted authority, and open wide the back door to idle or prurient curiosity?
Samuel D. Warren,
Louis D. Brandeis.
BOSTON, December, 1890.

Trust Chellamma and his Bharathi would tolerate this digression. It is not an alien intervention, by any means. For, what Bharathi expressed as deep invasion into his right to privacy in 190&, was exactly what Louis Brandeis, who went on to become the first Jewish justice on the bench of the US Supreme Court propounded in 1890. And now picked up by our Supreme Court also, in 2017, in the Justice K S Puttaswamy (Retd) case, by elevating the Right to Privacy, as a fundamental right of inviolable genre.

( Author is practising advocate in the Madras High Court)