Philosophical Foundations Of The Right To Privacy
The ‘ right to privacy ’ is essentially an offshoot of the philosophy of ‘individualism’. The relationship between the individual, the society and the state and the areas of conflict in their mutual spheres of activity has engaged the attention of political thinkers for several past centuries in the west. There are however, little sources in the writings of ancient Indian thinkers on the subject. The oriental peoples no doubt had speculated on the State and its problems even before the time of the Greeks. But they did not develop any political theory or philosophy to analyse the relationship of the individual and the state in any systematic form. The issue was mixed up with a great deal of mythology and superstition. Religion and politics were so inextricably intertwined that no attempt was made to develop an independent science or theory of politics. Political philosophy was treated as a branch of theology. Thus, the Greeks were the first people to develop the contours of the relationship between the individual and the state in its pure and systematic form. Early Hindu thought had much to say on kingship, village republics, organization of government, and the duties of rulers and subjects. All of this, however, did not produce a comprehensive political theory. Confucius of China and Kautilya of India seem to have been more concerned with statecraft i.e. the art of successful government somewhat on similar lines like laterday Machiavelli.
In the 9 Judges judgment of the Supreme Court on the ‘ Right to Privacy ’ there are references to the writings of some such political thinkers. Dr. Justice D.Y. Chandrachud, for instance, in the judgment authored by him, while discussing the origins of the ‘right to privacy’ has touched upon the views of some political thinkers like Aristotle, William Black Stone, John Stuart Mill, Austin and James Madison. The present article by way of a footnote therefore, intends to further elaborate upon the philosophical contributions of those thinkers as well as some other thinkers which may help in better appreciation of the issue.
An analysis of the origins of Western political thought reveals that even prior to Aristotle in Greece the teachings of the school of Sophists and especially Protagoras the 5th Century Greek thinker had advocated that “Man is the measure of all things”. Aristotle took a cue from the sophist thinkers and while delineating separate and distinct spheres of activity for the individual and the state in his book ‘politics’ reiterated the said principle by holding that ‘laws are made for men and not men for laws’. As a matter of fact the concept of an ‘Oikos’ which in English means a house in which a joint family resides and which was taken by Aristotle to be the exclusive sphere of activity of the family free from any interference of the ‘polis’ i.e. the state was the precursor of the modern concept ‘my house is my castle’ which is central to the present concept of the ‘right to privacy’ and finds mentioning in the judgment of the Supreme Court.
However, with the fall of the Roman Empire and the rise and growth of Feudalism in Europe the importance of the individual was lost and relegated to the background.
It was only with the coming of the industrial revolution in the 17th and 18th Century Europe and with the birth of the theory of ‘laissezfaire’ in the economic sphere that the importance of the individual was once again revived. The theory of laissez-faire which in essence means ‘letalone’ arose as a natural reaction to the meddlesome interference on the part of the state in all walks of life. Men of industry, enterprise and originality popularly referred to as ‘The Manchester Man’ clamoured for the ‘right to be let alone’ so that he could utilise his potentialities to the maximum advantage. The guiding principles of the century thus became maximum possible individual freedom and minimum possible state action and the same was brilliantly summarized in the words of John Stuart Mill in his works thus ‘over himself, over his body and mind, the individual is sovereign’. Government action was no doubt legitimate up to a point but beyond that it was felt that the same cramps the individual. Excessive government, it was felt, kills the individual’s sense of initiative and substitutes reliance on government for self reliance.
It was however, the Social contract theorists i.e. Hobbes, Locke and Rousseau and most notably John Locke who in his book ‘Two Treatises on Civil Government’ sowed the seeds of the ‘ right to privacy ’ by advocating the theory of Natural Rights which according to him were inviolable and in alienable. According to Locke setting up a government and making laws was only a secondary transaction between individuals the primary being preservation of life, liberty and property. According to him people give up only a part of their natural rights while abandoning ‘the state of nature’ and the remaining natural rights like life, liberty and property are kept intact with them. Appropriately therefore, in furtherance of this theory in his work ‘Essay concerning human understanding’ John Locke introduces the concept of ‘tabula rasa’. As understood by Locke, tabula rasa meant that the mind of the individual was a clean slate and individuals were free to author their own soul. Individuals were also free to define the content of their character. This presumption of a free, self authored mind combined with an immutable human nature is the essence of Locke’s doctrine of ‘Natural Rights’ which every individual brings with him from the state of nature into civil society and the same is inalienable and inviolable. Rousseau, the French philosopher and the other social contractualist in his classic statement ‘Man is born free but every where he is in chains’ also championed the theory of human dignity.
The 18th and 19th Century Europe thus, gave a tremendous boost to the principle of individual liberty and dignity. Freedom of thought, speech and action were accepted as fundamental liberal values. John Stuart Mill in his ‘Essays on liberty’ (1895) brought about a distinction between ‘self-regarding’ and ‘other-regarding’ action of the individuals and held that while the state could interfere and regulate the ‘other regarding actions’ of the individuals in the sphere of ‘self-regarding action’, which was exclusively in the private realm, the independence of the individual was absolute. Thus according to JS Mill “The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign”.
John Stuart Mill is also credited for having given true meaning and content to the concept of individual liberty and dignity of the individual from which logically flows ‘the right to privacy ’. Marking a serious departure from the Utilitarian theory of Bentham i.e. ‘the greatest happiness of the greatest number’ which in turn was based on the ‘pleasure-pain’ theory of Bentham Mill proclaimed that it is not the quantity of pleasure which was determinative but the quality of pleasure. Thus according to Mill it is for the individual to decide that ‘Playing pushpin is not as good as writing poetry’ and that it is better to be a ‘Socrates dissatisfied than a fool satisfied’. In the final analysis according to Mill the choice was to be left to the individual.
In due course therefore, in USA the concept that certain rights are inalienable came to be embodied in the American Declaration of Independence (1776) and in France the same was recognized in the Declaration of the Rights of Man and of the Citizen (1789). In Germany, also the idea of individual uniqueness (Einzigkeit) and self realization acquired centre stage.
Interestingly, even Karl Marx in his work ‘Economic and Philosophical Manuscripts’ (1848) recognized the importance of the individual in his theory of alienation and ennui.
In the United States further with passage of time individualism became part of the core American ideology by the 19th Century incorporating “the influences of New England Puritanism Jeffersonianism and the philosophy of Natural Right”. American individualism thus became universalist and idealist and gradually embraced the concept of the ‘right to be left alone’ as propounded by Thomas Cooley. The ‘inviolabilities and worth of the human body’ as central to any formulation of privacy and its extension to the human mind i.e. mental stimuli also came to be recognized in other jurisdictions. The works of George Orwell and his warning of the spectre of totalitarianism also contributed immensely to the increasing need for a right of privacy and an exclusive space for the individual. ‘The right to be left alone’ also came to be justified in USA on account of dense urbanisation, impact of technology, news paperization, defamation law etc.
The right to privacy as a fundamental and common law right being grounded on strong philosophical foundations has come to stay. However, there seems to be a ground swell of protest against the same. Writing in his book ‘The American Commonwealth’, James Bryce the former British Ambassador to the United States has noted thus “Individualism, the love of enterprise, and the pride in personal freedom have been deemed by Americans not only their choicest, but (their) peculiar and exclusive possession.” The French political philosopher Alexis de Tocqueville has similarly criticized American individualism with its emphasis on the ‘right to be let alone’ as a kind of moderate selfishness that disposed humans to be concerned only with their own small circle of family and friends. Observing the workings of the American democratic tradition Tocqueville wrote that by leading “each citizen to isolate himself from his fellows and to draw apart with his family and friends,’’ individualism sapped the “virtues of public life.
Jana Kalyan Das is the Sr. Advocate at Supreme Court of India.
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