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Evolution of Law of Privacy

History of Origin of concept of Privacy

Persecution of human races: (A Preface)

Might is right. This was the official motto of existence on earth and till this date, it continues to be the actual rule of existence. The only difference from dark ages and today is that now physical might has been replaced with various type of authority. We have invented numerous way to dominate others and we continue to invent new technologies to expand the domination. Freedom was and is an illusion. Words like Religion and God were such earlier tools of domination, which is now joined by Psychology and the list is endless.

Heresy:

In 12th century Roman Catholic Church became very aggressive in enrollment of new followers and in purging the non believers. The church was custodian of a divinely imparted revelation which it alone was authorized to expound under the inspiration of the Holy Spirit or the holy ghost. Which is the third personality in Christian Trinity.
Any criticism of official interpretation made by church, on any subject, was heresy and heretical person was liable to be purged.

Inquisition by Church

In 1184 Pope Lucius III, authorized a process of inquiry to combat heresy. the Bishops were authorized to make inquiries in their dioceses. In 1227 Pope Gregory IX started independent persons as Inquisitors who had authority over everyone except bishops and their officials. In 1252 Pope Innocent IV authorized these Inquisitors to engage henchmen to torture people.
The procedure adopted by these Inquisitors was anything but not Due Process recognized later. It was persecution of innocent people who were compelled to deny anything that according to Inquisitors was heresy. Remember Galileo, he was kept under house arrest till he died. They employed every method to extract confession, public ridicule, imprisonment, solitary confinement and torture to select a few. Murder and Burning alive were also not uncommon.
Since church was an Independent Authority acting under the Trinity of God, his son and Holy Spirit, the Due Process guaranteed by King had no effect. Rather the King could always approach church to control erring citizens.
This situation continued until about seventeen century.

Bill of right:

In 1689 the enactment of Bill of rights, and availability of Habeas Corpus to all coupled with the unpopularity of Church activities, a New Era or respect for human life begin.

Privacy as Fundamental Right:

US Courts as also Indian Courts have attributed different reasons and logic to protect individual liberties especially Privacy. It is my understanding that the above background has not been taken into account by the courts and it is for this reason, privacy has become a misunderstood concept. Some time it is a weapon to proclaim individuality or an inconvenience for Governments to do the same things which inquisitors were doing in Middle Ages.

United Nations Charter:

According to Universal Declaration of Human rights adopted by United Nation in its General Assembly in 1948 “Everyone has the right to life, liberty and security of person.” Further article 12 of Declaration provides:

“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

United States of America

The Constitution of United States was first to recognize the right of privacy from the intrusion of the State. Privacy is recognized in the Fourth Amendment of US constitution as under:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The reason given for aforesaid amendment is that founding fathers were smugglers and were seriously affected by Writ of Assistance, may be true or may be not but is not the only reason.

Position in India

Historically India has no known concept of privacy. In its 500 years of recurrent invasion and thereafter 450 years of foreign rule (first by Mughals and then by Britain), people have accepted the intrusion by State as part of life. However the Modern and Recent views are rather different. In India, relevant clause of the Constitution is Article 21 which is as under:

No person shall be deprived of his life or personal liberty except according to procedure established by law

the Supreme Court of India has interpreted article 21 and has held that right to life means Right to live with Dignity and therefore privacy is an integral part of Right to Life. This interpretation is more in tune with German Ground or Basic law ‘Grundgesetz für die Bundesrepublik Deutschland‘ which came into force in 1949 and its Article 1 states that:

Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.

However the courts while deciding various cases seems to be in jinx of thought. May be because the above process of evolution is now a distant history. We shall soon enter into the discussion about these decided cases in another post.

© Sandeep Bhalla

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About Sandeep Bhalla

A lawyer, thinker, author, Linux/Ubuntu power user but often an economist or gardener or philosopher or cook or photographer depending upon the current thought and environment. View all posts by Sandeep Bhalla

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