Yesterday a 9 judge bench of the Supreme Court of India gave a so-called historic decision of declaring privacy a fundamental human right now enshrined in the article 21 of the Indian constitution. Many are saying that this for the first time that some verdict is given unanimously by the bench 9 judges. This verdict now includes privacy also as a part of fundamental rights in article 21 of the Indian constitution, which wasn’t the case previously. Most people of the country and intellectuals have cheerfully welcomed this verdict hoping that this will stop the ruling BJP government from becoming totalitarian. The legal experts have hailed this verdict as historic, a watershed moment and a victory for common citizens by saying that it has far reaching implications for the matters like the beef ban, forceful use of Aadhaar card, government telling people what to wear and eat, abortion, LGBT rights, government surveillance in the form of reading peoples’ emails, text messages, listening to phone calls (wiretapping), and married women will have the right not to get raped in marriage etc. etc.
Most freedom loving people of India are also cheering this verdict because they think this is a blow to the Modi government who was arguing that people don’t have a right to privacy.
I think this is a moment which needs a calm reflection without any kind of such euphoria. I can understand that people are happy because the way Modi and his government are trying to control the body and mind of people this verdict seems like putting a break on those efforts. Notwithstanding this perception, the fundamental issue involved here is, should we give so much of importance to the issue of right to privacy and think it is a fundamental human right? What if the fundamental human right is something else and Supreme Court is not talking about it at all? In that case all hope of this verdict stopping Modi and his government from trampling on human rights turns out to be delusional. A careful logical analysis of ‘privacy as a human right’ issue will make this clear.
Is Privacy a Human Right?
Before answering this question of whether privacy is a human right or not we have to understand what human right actually is. To show that something is right for the humans we have to understand the basic human nature. Anything that is in accordance with this human nature is right and if it is not then it is wrong. The basic human nature is that nature has given all of us life. The basic life form is our own body. This life we can all sustain and enjoy only if we are free to use our bodies without any kind of restrictions from outside. Our body is thus our own i.e., we are the ultimate owners of our body, and ownership means this body is our property. For sustaining and enjoying our lives to its fullest potential we also need other resources like food, water, clothes, home, cars, computers etc. etc. We can acquire and own these prior unowned physical scarce resources via use of our bodies by appropriating them first. By this way we can make these resources our property too. Thus, as long as we are free to use our bodies and resources appropriated by using that body, together called our private property, we fulfill our nature. Anyone who infringes on the use of our private properties is violating our right. This proves that human right is nothing else but property right. This also proves that human right is basically a negative right i.e., others cannot stop me from using my property and similarly I cannot stop others from using their properties. As Prof. Murray Rothbard, the great 20th century philosopher of ethics, said:
And yet, on the contrary the concept of “rights” only makes sense as property rights. For not only are there no human rights which are not also property rights, but the former rights lose their absoluteness and clarity and become fuzzy and vulnerable when property rights are not used as the standard.In the first place, there are two senses in which property rights are identical with human rights: one, that property can only accrue to humans, so that their rights to property are rights that belong to human beings; and two, that the person’s right to his own body, his personal liberty, is a property right in his own person as well as a “human right.” But more importantly for our discussion, human rights, when not put in terms of property rights, turn out to be vague and contradictory.
After elucidating what human right is, we are ready to tackle the question of privacy as a human right. As Murray Rothbard above said, when human rights are not defined based on the bedrock standard of property rights they lose their absoluteness and clarity and become fuzzy and vulnerable to misuse. The case of privacy as a fundamental human right, as declared by the Supreme Court, falls in this category of defining human right without the firm base of property right. As Prof. Walter Block said, privacy is a benefit and not a right. To understand this fact let us take an example involving the issue of privacy. In this regard I am going to quote Prof. Murray Rothbard. Rothbard is using an example:
Does Smith, for example, have the right to print and disseminate the statement that “Jones is a liar” or that “Jones is a convicted thief” or that “Jones is a homosexual”? There are three logical possibilities about the truth of such a statement: (a) that the statement about Jones is true; (b) that it is false and Smith knows it is false; or (c) most realistically that the truth or falsity of the statement is a fuzzy zone, not certainly and precisely knowable (e.g., in the above cases, whether or not someone is a “liar” depends on how many and how intense the pattern of lies a person has told and is adjudged to add up to the category of “liar – an area where individual judgments can and will properly differ).
Suppose that Smith’s statement is definitely true. It seems clear, then, that Smith has a perfect right to print and disseminate the statement. For it is within his property right to do so. It is also, of course, within the property right of Jones to try to rebut the statement in his turn. The current libel laws make Smith’s action illegal if done with “malicious” intent, even though the information be true. And yet, surely legality or illegality should depend not on the motivation of the actor, but on the objective nature of the act. If an action is objectively non-invasive, then it should be legal regardless of the benevolent or malicious intentions of the actor (though the latter may well be relevant to the morality of the action). And this is aside from the obvious difficulties in legally determining an individual’s subjective motivations for any action.
It might, however, be charged that Smith does not have the right to print such a statement, because Jones has a “right to privacy” (his “human” right) which Smith does not have the right to violate. But is there really such a right to privacy? How can there be? How can there be a right to prevent Smith by force from disseminating knowledge which he possesses? Surely there can be no such right. Smith owns his own body and therefore has the property right to own the knowledge he has inside his head, including his knowledge about Jones. And therefore he has the corollary right to print and disseminate that knowledge. In short, as in the case of the “human right” to free speech, there is no such thing as a right to privacy except the right to protect one’s property from invasion. The only right “to privacy” is the right to protect one’s property from being invaded by someone else. In brief, no one has the right to burgle someone else’s home, or to wiretap someone’s phone lines. Wiretapping is properly a crime not because of some vague and woolly “invasion of a ‘right to privacy’,” but because it is an invasion of the property right of the person being wiretapped.
Similarly, the reason why government cannot stop us from eating whatever we want (beef) or force us to use Aadhaar card by making it compulsory everywhere is not because these actions of government violates our ‘privacy right’ but it violates our ‘property right’. The government cannot invade our privacy not because we have such ‘right to privacy’ but because the government itself has no rights at all. The government itself is an illegitimate illegal institution because it violates property rights of everyone, by initiating violence against all of us in the form of taxation etc., for its existence! Because of this reason, the government has no right to do anything.
As we have seen above, privacy is not a human right let alone a fundamental one. The only fundamental human right is property right. The Supreme Court ruling never ever mentioned this property right. In fact, the Indian constitution nowhere mentions property right as a fundamental human right. In fact, the Indian constitution is replete with rights like right to education, right to be not discriminated against etc., which are not rights at all but violation of (property) right! The fact remains that there is no concept of property right in India!
The danger of cheering for Supreme Court’s decision of including privacy as a fundamental human right in article 21 of the Indian constitution is the implicit acceptance of whatever the Indian constitution is saying. This constitution is a flawed document designed, prepared and signed by few people six decades ago. That document cannot bind billions of Indians in some imaginary implicit social contract with the Indian nation state (aka government). In this regard the great American legal theorist Lysander Spooner said:
The Constitution has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man. And it does not so much as even purport to be a contract between persons now existing. It purports, at most, to be only a contract between persons living eighty years ago. And it can be supposed to have been a contract then only between persons who had already come to years of discretion, so as to be competent to make reasonable and obligatory contracts. Furthermore, we know, historically, that only a small portion even of the people then existing were consulted on the subject, or asked, or permitted to express either their consent or dissent in any formal manner. Those persons, if any, who did give their consent formally, are all dead now. Most of them have been dead forty, fifty, sixty, or seventy years. And the constitution, so far as it was their contract, died with them. They had no natural power or right to make it obligatory upon their children. It is not only plainly impossible, in the nature of things, that they could bind their posterity, but they did not even attempt to bind them. That is to say, the instrument does not purport to be an agreement between any body but “the people” then existing; nor does it, either expressly or impliedly, assert any right, power, or disposition, on their part, to bind anybody but themselves.
The Indian constitution has no authority over us. It is a ruse used by the state officials to rule and control us for centuries. As long as Indians continue to be ruled by these state officials, by using the document that they designed, Indians can never be free to enjoy their lives, property or even privacy.