Thursday, August 03, 2017

Your Fingerprints - On The Next Bank Robbery

Privacy - Historical Perspective
The ongoing arguments in the Aadhaar case before the Supreme Court on the question, 'whether right to privacy is protected as a fundamental right or not', is important. An affirmative answer will reopen other fundamental issues regarding—right to end one's life; right to have same sex relationships; and GLBT rights. 
This is three part series about 'Privacy'. In this part, we take a historical journey. 
This series is based on the written submissions submitted before the Supreme Court by the author.


Justice Louis Brandeis - Pioneer of Privacy - Picture Courtesy Wikipedia



At the end of the nineteenth century, two young Harvard law graduates—Samuel Warren and Louis Brandeis (later judge of the US Supreme court)—set up their office in Boston. Soon after Samuel's marriage, he was unhappy with the press coverage of his social life. He urged his partner to collaborate in writing a paper on privacy. Brandeis was unwilling, as it was in conflict with freedom of press but gave in because of his partner's request.

Warren and Brandeis published a paper titled 'The Right to Privacy' in 4 Harvard Law Review 193 (1890). It turned out to be the most influential law review of all times and added new chapter of law. (See End Note-1

In the paper, the two young lawyers argued that 'the right to life has come to mean the right to enjoy life, the right to be let alone'. They also took help of two British cases {Prince Albert vs Strange (1849) 1 Hall & Twells 1 (the Albert case) and Wyatt vs Wilson (1820) 1 Hall & Twells 25 (the Wyatt case)},  which are said to be the first to recognise right to privacy in England. 

The facts of the Albert case were that Queen Victoria and her husband (Prince Albert) had made 63 sketches of their family life. They made impressions. These details came in the hands of one Strange. He tried to publish the catalogue of the sketches and sell it. Prince Albert obtained an injunction restraining him to do so. In the order, the court held that a man 'is entitled to be protected in the exclusive use and enjoyment of that which is exclusively his' and by the acts of the defendants 'privacy is the right invaded'.

The court also approved the opinion of Lord Eldon (as reported in a manuscript note of the Wyatt case) in respect of an engraving of George the third during his illness, where it was said,
'If one of the late king's physicians had kept a diary of what he heard and saw, the court would not, in the king's lifetime, have permitted him to print and publish it'. (See End Note-2)

Justice Brandeis took proposition formulated in the paper further in Olmstead vs US 277 US 438 (1928) (the Olmstead case). The question involved in this case was, whether evidence obtained by prosecution by illegal wire tapping could be used as evidence or not. The court by 5:4 decision held that there was no violation of the fourth and fifth Amendment rights as there was no entry and the evidence could be used. However, Justice Brandies dissented. Later, his dissent became the law.

The dissent of Justice Brandeis is most eloquent and most quoted. He observed that 'the right to be let alone—the most comprehensive of rights, and the right most valued by civilised men'.

The US Supreme Court took right to privacy further in Griswold vs Connecticut 381 US 479 (1965). It involved constitutionality of a Connecticut law that forbade use of contraceptives or advise as to their use. The court, by majority of 7:2, invalidated the law on the grounds of privacy.

Justice Douglas wrote the opinion of the court and based the right of privacy not on any specific but on the penumbra of Bill of Rights (though not on due process clause of the fourteenth amendment). Justice Golberg (with whom the Chief Justice and Justice Brennan joined) concurred basing right to privacy on additional ground of ‘Due process' in the fourteenth amendment.

US Supreme Court further extended concept of privacy in—

  • Eisenstadt vs Baird 405 US 438 (1972) (extended benefit of the Griswold case to unmarried couples); 
  • Roe vs Wade 410 US 113 (1973) (legalised abortion); 
  • Lawrence vs Texas 539 US 558 (2003) (decriminalised same sex relation); and
  • Obergefell vs Hodges 576 US … (2015) (legalised same-sex marriages).

In the next part, we will look at the Indian perspective.

End Note-1: To know more about the same, see Cowen's 'Individual  Liberty and the Law' Tagore law lectures 1977 page (Pg) 80 and 'Louis D Brandeis  A Life' by  Melvin I Urofsky Pg 98

End Note-2: To know more about the same, see Lord Denning's 'The Family Story' Pg 188 and 'What Next in the Law' Pg 221.

#Privacy #YatindraSingh 

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