Privacy is a concomitant of the right of the individual to exercise control over his or her personality. It finds an origin in the notion that there are certain rights which are natural to or inherent in a human being. Natural rights are inalienable because they are inseparable from the human personality. The human element in life is impossible to conceive without the existence of natural rights.
In 1690, John Locke had in his Second Treatise of Government observed that the lives, liberties and estates of individuals are as a matter of fundamental natural law, a private preserve. The idea of a private preserve was to create barriers from outside interference.
In 1765, William Blackstone in his Commentaries on the Laws of England spoke of a “natural liberty”.
There were, in his view, absolute rights which were vested in the individual by the immutable laws of nature. These absolute rights were divided into rights of personal security, personal liberty and property. The right of personal security involved a legal and uninterrupted enjoyment of life, limbs, body, health and reputation by an individual.
The notion that certain rights are inalienable was embodied in the American Declaration of Independence (1776) in the following terms:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights that among these are life, liberty and the pursuit of happiness”.
The term inalienable rights was incorporated in the Declaration of the Rights of Man and of the Citizen (1789) adopted by the French National Assembly in the following terms:
“For its drafters, to ignore, to forget or to depreciate the rights of man are the sole causes of public misfortune and government corruption. These rights are natural rights, inalienable and sacred, the National Assembly recognizes and proclaims them-it does not grant, concede or establish them-and their conservation is the reason for all political communities; within these rights figures resistance to oppression”.
In 1921, Roscoe Pound, in his work titled “The Spirit of the Common Law”, explained the meaning of natural rights:
“Natural rights mean simply interests which we think ought to be secured; demands which human beings may make which we think ought to be satisfied. It is perfectly true that neither law nor state creates them. But it is fatal to all sound thinking to treat them as legal conceptions. For legal rights, the devices which law employs to secure such of these interests as it is expedient to recognize, are the work of the law and in that sense the work of the state.”
Two decades later in 1942, Pound in “The Revival of Natural Law” propounded that:
“Classical natural law in the seventeenth and eighteenth centuries had three postulates. One was natural rights, qualities of the ideal or perfect man in a state of perfection by virtue of which he ought to have certain things or be able to do certain things. These were a guarantee of stability because the natural rights were taken to be immutable and inalienable.
(2) The social compact, a postulated contract basis of civil society. Here was a guide to change. (3) An ideal law of which positive laws were only declaratory; an ideal body of perfect precepts governing human relations and ordering human conduct, guaranteeing the natural rights and expressing the social compact.”
In 1955, Edwin W Patterson in “A Pragmatist Looks At Natural Law and Natural Rights” observed that rights which individuals while making a social compact to create a government, reserve to themselves, are natural rights because they originate in a condition of nature and survive the social compact. In his words:
“The basic rights of the citizen in our political society are regarded as continuing from a prepolitical condition or as arising in society independently of positive constitutions, statutes, and judicial decisions, which merely seek to “secure” or “safeguard” rights already reserved. These rights are not granted by a benevolent despot to his grateful subjects.
The “natural rights” theory thus provided a convenient ideology for the preservation of such important rights as freedom of speech, freedom of religion and procedural due process of law. As a pragmatist, I should prefer to explain them as individual and social interests which arise or exist normally in our culture and are tuned into legal rights by being legally protected.”
Natural rights are not bestowed by the state. They inhere in human beings because they are human. They exist equally in the individual irrespective of class or strata, gender or orientation.
Distinguishing an inalienable right to an object from the object itself emphasises the notion of inalienability. All human beings retain their inalienable rights (whatever their situation, whatever their acts, whatever their guilt or innocence). The concept of natural inalienable rights secures autonomy to human beings. But the autonomy is not absolute, for the simple reason that, the concept of inalienable rights postulates that there are some rights which no human being may alienate.
While natural rights protect the right of the individual to choose and preserve liberty, yet the autonomy of the individual is not absolute or total. As a theoretical construct, it would otherwise be strictly possible to hire another person to kill oneself or to sell oneself into slavery or servitude. Though these acts are autonomous, they would be in violation of inalienable rights. This is for the reason that:
“…These acts, however autonomous, would be in violation of inalienable rights, as the theories would have it. They would be morally invalid, and ineffective actually to alienate inalienable rights. Although self-regarding, they pretend to an autonomy that does not exist. Inalienable rights are precisely directed against such false autonomy. Natural inalienable rights, like other natural rights, have long rested upon what has been called the law of nature of natural law.
Perhaps all of the theories discussed above could be called law of nature or natural law theories. The American tradition, even as early as 1641, ten years before Thomas Hobbes published Leviathan, included claims of natural rights, and these claims appealed to the law of nature, often in terms.
Without a moral order of the law of nature sort, natural inalienable rights are difficult to pose. “’It is from natural law, and from it alone, that man obtains those rights we refer to as inalienable and inviolable…Human rights can have no foundation other than natural law.”
The idea that individuals can have rights against the State that are prior to rights created by explicit legislation has been developed as part of a liberal theory of law propounded by Ronald Dworkin. In his seminal work titled “Taking Rights Seriously” (1977), he states that:
“Individual rights are political trumps held by individuals. Individuals have rights when, for some reason, a collective goal is not a sufficient justification for denying them what they wish, as individuals, to have or to do, or not a sufficient justification for imposing some loss or injury upon them.”
Dworkin asserts the existence of a right against the government as essential to protecting the dignity of the individual:
“It makes sense to say that a man has a fundamental right against the Government, in the strong sense, like free speech, if that right is necessary to protect his dignity, or his standing as equally entitled to concern and respect, or some other personal value of like consequence.”
Dealing with the question whether the Government may abridge the rights of others to act when their acts might simply increase the risk, by however slight or speculative a margin, that some person’s right to life or property will be violated, Dworkin says:
“But no society that purports to recognize a variety of rights, on the ground that a man’s dignity or equality may be invaded in a variety of ways, can accept such a principle… If rights make sense, then the degrees of their importance cannot be so different that some count not at all when others are mentioned… If the Government does not take rights seriously, then it does not take law seriously either…”
Dworkin states that judges should decide how widely an individual’s rights extend. He states:
“Indeed, the suggestion that rights can be demonstrated by a process of history rather than by an appeal to principle shows either a confusion or no real concern about what rights are… This has been a complex argument, and I want to summarize it. Our constitutional system rests on a particular moral theory, namely, that men have moral rights against the state.
The different clauses of the Bill of Rights, like the due process and equal protection clauses, must be understood as appealing to moral concepts rather than laying down particular concepts; therefore, a court that undertakes the burden of applying these clauses fully as law must be an activist court, in the sense that it must be prepared to frame and answer questions of political morality…”
A later section of this judgment deals with how natural and inalienable rights have been developed in Indian precedent.