A Private Discourse

The Sheriff of London knocked on the door of Richard Gresham and George Berisford, who were joint tenants of a house in Blackfriars. What happened next changed the world’s perception on privacy.

Here’s a little backstory, as the Tuesday speaker, Darius Khambatta, a distinguished senior counsel, explained: Berisford died while in debt to Peter Semayne. As per a civil writ, Semayne was now the rightful owner of all that Berisford left behind at his home in Blackfriars. So accompanied by a sheriff, Semayne reached the house, now occupied solely by Gresham.

17-12-12-053When the sheriff knocked, Gresham refused to open the door because he felt it was an intrusion on his privacy. The sheriff was about to break open the door, when Semayne asked him to refrain, and as an alternative course of action, decided to sue Gresham. The matter kept the court busy for days until the judges ordered by decree that even the Sheriff of England required a warrant to enter the house of a commoner. This incident took place in 1604, but became an inspiration in the years to come.

The landmark judgement was aptly reported by Sir Edward Coke, the then Attorney General of England, who said: “The poorest man may, in his cottage, bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; but all his force dares not cross the threshold of the ruined tenement.”

17-12-12-141In 1890, Samuel Warren and Louis Brandeis set up a law firm in Boston, which was where the Right to Privacy article was conceived (back then they called it the Right To Be Let Alone). It was amended in 1967, after the case of Katz v. United States was to ask the question of privacy at a phone booth, because the FBI had tapped Katz’s conversation in a phone booth in order to gather evidence about his involvement in a crime. That is when it was realised that the right to privacy could be violated by electronic eavesdropping, not just by physical intrusion.

17-12-12-127The evolution of the right to privacy, from being a penumbral law to a fundamental right, began in 1954. In India, an eight-judge bench refused to acknowledge the existence of such a right, sighting that the makers of the constitution did not envisage a fundamental right to privacy that was based on the lines of the 4th Amendment in the U.S. Thus, the defendant, M.P. Sharma could not stop the authorities from seizing important documents from the Dalmia Group in the M.P. Sharma v. Satish Chandra case. Less than a decade later, Kharak Singh, an alleged dacoit, made an appeal to the Supreme Court to safeguard his right to privacy. He had been put under a kind of surveillance that was so severe that one of the judges was forced to comment, “… nothing is more deleterious to a man’s physical happiness and health than a calculated interference with his privacy.” The judge was Justice Subha Rao. Unfortunately, he was the only judge to dissent.

17-12-12-087Twelve years later, a silver lining did appear in the Gobind v. State of Madhya Pradesh. The Supreme Court upheld the existence of a fundamental right to privacy in interpreting Article 21. However, it was only recognised as a common law that could be revoked. When India was in its postliberalisation phase, privacy as a jurisprudence further strengthened. But it took a few more hours of courtroom drama to realise the importance of making the right to privacy a fundamental right. Take for example: In the R. Rajagopal v. State of Tamil Nadu case, the Supreme Court had to deal with the conflict between the freedom of press and the right to privacy.

As of today, the Aadhar Card concept remains a cause of concern to advocates of privacy, so even though the Supreme Court has declared the right to privacy a fundamental right, Darius Khambatta, concludes: “The law of privacy is yet being written, and will be written for several years to come; It has not concluded.”