The Greek philosopher Aristotle spoke of a division between the public sphere of political affairs (which he termed the polis) and the personal sphere of human life (termed oikos). This dichotomy may provide an early recognition of “a confidential zone on behalf of the citizen”.

Aristotle’s distinction between the public and private realms can be regarded as providing a basis for restricting governmental authority to activities falling within the public realm. On the other hand, activities in the private realm are more appropriately reserved for “private reflection, familial relations and self-determination”.

Private wrongs and Public wrongs

At a certain level, the evolution of the doctrine of privacy has followed the public – private distinction. William Blackstone in his Commentaries on the Laws of England (1765) spoke about this distinction while dividing wrongs into private wrongs and public wrongs. Private wrongs are an infringement merely of particular rights concerning individuals and are in the nature of civil injuries. Public wrongs constitute a breach of general and public rights affecting the whole community and according to him, are called crimes and misdemeanours.

John Stuart Mill ‘On Liberty’

John Stuart Mill in his essay, ‘On Liberty’ (1859) gave expression to the need to preserve a zone within which the liberty of the citizen would be free from the authority of the state. According to Mill:

“The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.”

While speaking of a “struggle between liberty and authority”, Mill posited that the tyranny of the majority could be reined by the recognition of civil rights such as the individual right to privacy, free speech, assembly and expression.

Austin’s ‘Lecture on Jurisprudence’

Austin in his Lectures on Jurisprudence (1869) spoke of the distinction between the public and the private realms: jus publicum and jus privatum.

The distinction between the public and private realms has its limitations. If the reason for protecting privacy is the dignity of the individual, the rationale for its existence does not cease merely because the individual has to interact with others in the public arena. The extent to which an individual expects privacy in a public street may be different from that which she expects in the sanctity of the home.

Yet if dignity is the underlying feature, the basis of recognising the right to privacy is not denuded in public spaces. The extent of permissible state regulation may, however, differ based on the legitimate concerns of governmental authority.

Inalienable property rights of human beings

James Madison, who was the architect of the American Constitution, contemplated the protection of the faculties of the citizen as an incident of the inalienable property rights of human beings. In his words:

“In the former sense, a man’s land, or merchandize, or money is called his property. In the latter sense, a man has property in his opinions and the free communication of them… He has an equal property interest in the free use of his faculties and free choice of the objects on which to employ them. In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights. Where an excess of power prevails, property of no sort is duly respected.

No man is safe in his opinions, his person, his faculties or his possessions… Conscience is the most sacred of all property; other property depending in part on positive law, the exercise of that, being a natural and inalienable right.

To guard a man’s house as his castle, to pay public and enforce private debts with the most exact faith, can give no title to invade a man’s conscience which is more sacred than his castle, or to withhold from it that debt of protection, for which the public faith is pledged, by the very nature and original conditions of the social pact.”

Madison traced the recognition of an inviolable zone to an inalienable right to property. Property is construed in the broadest sense to include tangibles and intangibles and ultimately to control over one’s conscience itself.

Right to be let Alone

In an article published on 15 December 1890 in the Harvard Law Review, Samuel D Warren and Louis Brandeis adverted to the evolution of the law to incorporate within it, the right to life as “a recognition of man’s spiritual nature, of his feelings and his intellect

As legal rights were broadened, the right to life had “come to mean the right to enjoy life – the right to be let alone”. Recognizing that “only a part of the pain, pleasure and profit of life lay in physical things” and that “thoughts, emotions, and sensations demanded legal recognition”, Warren and Brandeis revealed with a sense of perspicacity the impact of technology on the right to be let alone:

“Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right “to be let alone”. Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that “what is whispered in the closet shall be proclaimed from the house-tops.”

For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons… The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflict.

In their seminal article, Warren and Brandeis observed that:

“The principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality.”

The right “to be let alone” thus represented a manifestation of “an inviolate personality”, a core of freedom and liberty from which the human being had to be free from intrusion. The technology which provided a justification for the need to preserve the privacy of the individual was the development of photography. The right to be let alone was not so much an incident of property as a reflection of the inviolable nature of the human personality.

The ringing observations of Warren and Brandeis on the impact of technology have continued relevance today in a globalized world dominated by the internet and information technology. As societies have evolved, so have the connotations and ambit of privacy.

Though many contemporary accounts attribute the modern conception of the ‘right to privacy’ to the Warren and Brandeis article, historical material indicates that it was Thomas Cooley who adopted the phrase “the right to be let alone”, in his Treatise on the Law of Torts.

Discussing personal immunity, Cooley stated:

“the right of one’s person may be said to be a right of complete immunity; the right to be alone.”

Roscoe Pound described the Warren and Brandeis article as having done “nothing less than add a chapter to our law”.

However, another writer on the subject states that:

“This right to privacy was not new. Warren and Brandeis did not even coin the phrase, “right to privacy,” nor its common soubriquet, “the right to be let alone”.” The right to be let alone is a part of the right to enjoy life. The right to enjoy life is, in its turn, a part of the fundamental right to life of the individual.

The right to privacy was developed by Warren and Brandeis in the backdrop of the dense urbanization which occurred particularly in the East Coast of the United States. Between 1790 and 1890, the US population had risen from four million to sixtythree million. The population of urban areas had grown over a hundred-fold since the end of the civil war. In 1890, over eight million people had immigrated to the US. Technological progress and rapid innovations had led to the private realm being placed under stress:

“…technological progress during the post-Civil War decades had brought to Boston and the rest of the United States “countless, littlenoticed revolutions” in the form of a variety of inventions which made the personal lives and personalities of individuals increasingly accessible to large numbers of others, irrespective of acquaintance, social or economic class, or the customary constraints of propriety.

Bell invented the telephone in Boston; the first commercial telephone exchange opened there in 1877, while Warren and Brandeis were students at the Harvard Law School. By 1890 there were also telegraphs, fairly inexpensive portable cameras, sound recording devices, and better and cheaper methods of making window glass.

Warren and Brandeis recognized that these advances in technology, coupled with intensified newspaper enterprise, increased the vulnerability of individuals to having their actions, words, images, and personalities communicated without their consent beyond the protected circle of family and chosen friends.”

Coupled with this was the trend towards ‘newspaperization’, the increasing presence of the print media in American society. Six months before the publication of the Warren and Brandeis’ article, E L Godkin, a newspaper man had published an article on the same subject in Scribner’s magazine in July 1890. Godkin, however, suggested no realistic remedy for protecting privacy against intrusion, save and except “by the cudgel or the horsewhip”.

It was Warren and Brandeis who advocated the use of the common law to vindicate the right to privacy.

Criminal libel actions were resorted to in the US during a part of the nineteenth century but by 1890, they had virtually ceased to be “a viable protection for individual privacy”. The Sedition Act of 1789 expired in 1801. Before truth came to be accepted as a defence in defamation actions, criminal libel prosecutions flourished in the State courts.

Similarly, truth was not regarded as a valid defence to a civil libel action in much of the nineteenth century. By the time Warren and Brandeis wrote their article in 1890, publication of the truth was perhaps no longer actionable under the law of defamation. It was this breach or lacuna that they sought to fill up by speaking of the right to privacy which would protect the control of the individual over her personality.

The right to privacy evolved as a “leitmotif” representing “the long tradition of American individualism”. Conscious as we are of the limitations with which comparative frameworks of law and history should be evaluated, the above account is of significance. It reflects the basic need of every individual to live with dignity.

Urbanization and economic development lead to a replacement of traditional social structures. Urban ghettos replace the tranquillity of self-sufficient rural livelihoods. The need to protect the privacy of the being is no less when development and technological change continuously threaten to place the person into public gaze and portend to submerge the individual into a seamless web of inter-connected lives.


Justice K. Puttaswamy v. Union of India (2018)