Privacy and the Indian Supreme Court

Privacy, in something close to its current form, first appeared as a concept in the nineteenth century, the invention of Western legists, who, as the world recovered from enlightenment’s birth pangs, envisaged a little sanctuary where the individual would find refuge from the alienating forces modernity ushered in. On 15 December 1890, in an early essay on privacy published in the Harvard Law Review, Warren and Brandeis campaigned for the right as a 'retreat from the world', owed to 'the intensity and complexity of life'. In the old days, Mill’s mantra of life, limb, and property was sufficient to grease the legal engine, but 'advances of civilization' now necessitated a broader legal recognition of 'thoughts, emotions, and sensations'. 1888 was the year Warren and Brandeis feared the gates to hell had swung wide open: with newspapers 'overstepping every obvious bound of propriety and decency', publishing stories about ’sexual relationships', or other 'idle gossip', hurting every upright moral man 'more than battery or assault'. Newspaper reportage now magnified what was being 'whispered in the closet' to a degree that it might as well be ’screamed from the rooftop'.

If the U.S. had Warren and Brandeis, kids in India had Gandhi. To overcome alienation, Gandhi picked full transparency over a retreat to an inner, impenetrable core. His take on intellectual property and copyright, models that served as privacy’s legal precedents, was more piratebay than netflix. Like piratebay, Gandhi also championed sacrificial duties over contractual rights. In a short letter to UNESCO’s director general Julian Huxley, published in an edited volume on human rights just after World War II, Gandhi remains fixated on obligations that individuals owe to the community rather than making the expected case for individual rights as legal instrument to carve out a liveable niche in a nation state (or a cosmopolitan wonderland) ...

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