Right to Privacy a Fundamental Right, Says Indian Supreme Court
thewire.in
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Privacy though, privacy is like speech or equality before the law or presumption of innocence. You have it by default and if it’s denied there is a culprit.
Even in this case, we seem to have a hard time expanding rights. I say expanding, but privacy is a right in many places, formally. But, the interpretation of that right is very weak.
Anyway… if we’re to make privacy a right with serious intent then there needs to be a willingness to break eggs, bear a cost. The right to free speech, conscience, affiliation , assembly and other political freedoms mean we need to tolerate and protect the proverbial nazis’ rights to try and spread their politics. Bitter pill for anyone scared of a proverbial nazi takeover.
Are we willing to bear the (fear-based, mostly) costs in the fight against the terrorism demon. The economic costs that will be claimed by companies relying on data? If we have a strong yes, I think we can start building the real framework of laws and conventions that will secure a right to privacy for the next few generations.
Absolute principles require some sacrifice.
Nazi's are an easy target. The problem starts when things are not as clean cut -- when actual politics are involved, as opposed to crude stuff like "exterminate all jews" and "blacks are inferior", etc that Nazi's might say.
Let's say a team wants to overthrow the presidency and bring something like another parliamentary system in the US. Or rewrite the constitution and remove the BS ideas from 3 centuries ago.
Should they be allowed to express their ideas? If they get somewhat popular and other people worry about their influence?
And what's stopping disagreeing people from considering them the same, or worse, as they'd have more current influence, than Nazis, and asking to ban their speeches etc?
(Many people considered the CPUSA like that in the 30s and up to the 60s)
The US was ostensibly formed to preserve the rights of its citizens. If we let people exercise those rights, they may dissolve the union. But if we don't let them exercise those rights in order to preserve the union, the union loses its entire purpose; the union as it was intended is destroyed just as surely as if it were dissolved.
It wasn't so clean cut back in Germany in the 30s either, there was always some other rhetoric: being "stabbed in the back" in WW1 by internal forces, using emergency powers to deal with effects of Great Depression and threat of Marxism.
[Update]
I encourage watching snippets of Hitler's speeches (with translations): https://www.youtube.com/watch?v=AnpTWKKWQ1o. Strip away swastikas and heils and these could be used by populist politicians today.
Even if we succeed in prosecuting hate speech there will still be plenty room for fanatics to come to power.
Well, the CPUSA wasn't.
Correct. Right to a fair trail is also a positive right. To uphold it, the state must pay for a lawyer if you don't have one, the state must pay for enough judges (& associated costs) to ensure your trail isn't delayed ("Justice delayed is justice denied" and all that).
> The right to free speech, conscience, affiliation , assembly and other political freedoms mean we need to tolerate and protect the proverbial nazis’ rights to try and spread their politics.
Plenty of legal systems have those rights, and also ban nazis or similar groups. It's not an either/or.
Ehh, I'm not sure. The actual right is better described as the right not to be unfairly tried, which is clearly negative. The distinction is more than semantic: if the State launches an investigation and then drops it, leaving suspicion in the public's mind, you can't force them to go to trial to present your case and clear your name.
What is at stake is the liberty of the poor not to be interfered with in taking from the surplus possessions of the rich what is necessary to satisfy their basic needs. Needless to say, libertarians would want to deny that the poor have this liberty. But how could they justify such a denial? As this liberty of the poor has been specified, it is not a positive right to receive something, but a negative right of non-interference.
The right to a fair trial is about two things: you must be tried before being found guilty and punishment/sentencing is administered, and that trial must be executed fairly. In effect, you have the right to a (fair) trial.
A trial and especially a fair trial are undeniably interventions on how things would otherwise proceed. But I agree with moomin that the positive/negative distinction is not really meaningful.
No, because otherwise it would just be aggression. A trial is a method for the accusers to be able to show that their subsequent aggression (imprisonment, removal of property, etc) is justified.
Whether or not you think an "extra right" is necessary has no bearing on why that right is provided.
They are mistaken. Free speech and free association are not extant when books are banned or ideas are outlawed.
It is an either/or and all historical evidence serves to confirm this.
If you want blowfish source to not be a munition you need to put up with the Westboro Baptists.
I mean, is this just arguing about the definition of the term "free speech"? It's not hard to think of easy examples, like the "shouting fire in a crowded theater" or "revealing military secrets to the enemy at times of war" or "libel" or "slander". By necessity, we accept that there are restrictions.
In general I favor a generous standard, where to disallow certain types of speech you need to carve out a compelling case -- the default should be that speech (and speech-like things) should not be forbidden. But stating it as a naked tautology is not helpful because it acknowledges none of the nuance.
> all historical evidence serves to confirm this
Once again, if we're just talking definitions, then sure, any place or time where books are banned or ideas are outlawed is not practicing free speech. But I think you'd be hard-pressed, given the exceptions above, to ever find a place in history where this was practiced.
Nope. The state could just choose not to prosecute.
So, no: personal rights don't have to come with costs to be meaningful. Example: "You have the right to peacefully assemble and protest for your beliefs. Yeah, no, not in my living room." Religious liberties, as another example, also seem to be doing just fine, even though it seriously cramps my style that people apparently belief virgin sacrifices are no longer included in that freedom.
I'm not convinced I know how I feel about this. I want to believe this is a false dichotomy. Can we have limits in polite society?
I keep thinking of the paradox of tolerance[1], which states, in brief, that if a society is tolerant without limit, their ability to be tolerant will eventually be seized or destroyed by the intolerant.
To me it seems like the opposite is happening. Nazi ideologies are marginalized and meaningless, yet propped up like some huge threat to us... like they might take over. And this is being used as justification for limiting free speech, in a hyper-politically correct society where even micro-aggressions could be categorized as "hate speech."
Perhaps we could just recognize and acknowledge that, while reprehensible, it's not like Nazi believers are anything more than a rounding error in normal society. And then move on with our days.
If we're going to tolerate Nazi and Nazi-like speech, don't we also have to tolerate those who would should them down?
Until we start rounding up Nazis, and Nazi sympathisers, and politely asking them to reside in this here concentration camp and eat this rotten-fish-head-with-cabbage soup, shouting them down seems quite reasonable.
You're thinking about it a little backwards - here's a fascinating example of the paradox of tolerance:
Proposition 8, in California (2008)[1] was a ballet initiative that proposed that "only marriage between a man and a woman is valid or recognized in California".
Proposition 8 passed and the post mortem indicated that black and latino/hispanic voters (who are not politically progressive in the manner of coastal californians) voted (overwhelmingly, in the case of blacks) in favor of the proposition - so much so as to be a deciding factor in its passage.[2][3][4]
[1] https://en.wikipedia.org/wiki/California_Proposition_8_(2008...
[2] http://latimesblogs.latimes.com/lanow/2008/11/70-of-african-...
[3] http://www.washingtontimes.com/news/2008/nov/8/blacks-hispan...
[4] https://www.washingtonpost.com/news/the-fix/wp/2013/03/26/ho...
The minorities in question were welcomed into society and empowered with votes then promptly voted to oppress another minority. There are clearly problems with this.
What are we to do? One way of dealing with the problem would be to ask the question at census time: Do you believe in Nazi or Nazi like ideologies? and then round those people up and put them to death. This has it's own problems.
Doing things like clamping down speech that incites violence or otherwise directly harms people is working. More options are open for almost all members of minorities than ever before (in terms of jobs, opportunities, legal recourse, etc... ). The nazis are just being loud about it now because they think trump will somehow protect them.
Convict and arrest people advocating for the death's of others, financially fine those empowering that one specific kind of speech and the people will continue to get smaller. Without the violence hate speech cannot grow.
There are other options, reasonable limits, as you've pointed out.
We can go with the data.
People don't find this to be convincing: "Don't worry, the ruling class makes sure only the dangerous speech is stopped". Especially with free speech rules, we have a "Quis custodiet ipsos custodes?" situation.
Because the public isn't stupid.
Does the slippery slope argument work here?
I'm sure German's have their own opinions about it all, in private, and in public to the extent allowed under their laws, and they seem to have a relatively coherent sense of how to go about having a society. Perhaps even more coherent than the US.
In 2015 Germany rated higher (aggregate score 95) than the US (aggregate score 90) for freedom of the press.[1]
1. Refer chart commencing page 20 - https://freedomhouse.org/sites/default/files/FH_FITW_Report_...
A government which firmly censors newspapers writing restaurant reviews but allows anything else is fairly clearly more free than one which also forbids discussion of politics, religion, and the football results. I don't think anybody would say they are indifferent to which of the two they would prefer, on the grounds that neither are wholly free.
Tolerating intolerance is indeed an issue, but I don’t think there’s anything inevitable about their eventual success. For liberal democracy to survive, the electorate need to choose it. If 51% of the public is non democratic in their political preferences, we can’t have democracy.
They have a right to speak, not rule.
But a lot of words are mixed with actions: harassments, segregation, etc. Those should be clearly identified so that free speech don't protect them.
If all consequences of speech were neutral or positive, we could make the world a better place by connecting a source of randomness with a text-to-speech synthesiser. But that's absurd.
Therefore, speech has the ability to harm. The distinction between "words" and "actions" is meaningless, as is already obvious from your inclusion of harassment in your list of actions. Because harassment is also just speech.
And you speak about consequences, but those consequences are the one that should be punished. Because you can assess consequences. You can evaluate damages. You can't evaluate the value of words.
If you say "kill the xx" one time, it really doesn't matter.
If you say "kill the xx" and that it leads to attempt to kill, then the problem is the intent to kill.
Otherwise South park / Rick and Morty could not exist.
So there is harmful speech. Thanks.
> Otherwise South park / Rick and Morty could not exist.
South Park is freely shown on TV stations in basically any country that has enough of an audience to make economic sense. Every single one of those countries has more restrictive laws regarding hate speech, yet they also seem to have the capability to distinguish between a TV show and and armed mob with swastikas.
The rest of society can have different rules which can be more nuanced.
Creating "free speech zones" seems like a surefire way to start telling everyone to "take it to the free speech zone" and stop annoying "normal people" with your ideas. It's like the wet dream of these people that have started calling citizens consumers, even in a political context, and advocate the criminal prosecution of peaceful protesters when they don't all stay on the sidewalks.
FWIW, I first remember hearing the term in the context of the Beijing Olympics, which should tell you everything you need to know about that idea.
I went to university in the United States. The university I attended instituted "free speech zones" in the wake of the (second) Iraq War. They were initially protest zones, but by the time I was there they had turned into what you basically said - places where students were told to go to express unpopular ideas instead of being allowed to express them in class.
I took a sociology course during my studies, and the topic of abortion came up. Instead of having a nuanced discussion about the topic, students objecting to the professor's view were cut off or ridiculed. One student, trying to articulate their position was yelled at, by the professor, to shut up and if they felt strongly enough to take their position "to the free speech zone with the other Christian fascists and religious weirdos". Every year I was there, the bounds of the free speech zone got smaller and smaller, so there was even less room where unpopular ideas were officially tolerated on campus.
This is part of why I got out of academia. Not because of any institutional bias, but the authoritarian bent of the administration. All of campus should be a free speech zone. (No, disrupting class is not "free speech", there is a difference.)
Example from 2004: https://www.acslaw.org/acsblog/free-speech-zones-balancing-f...
Edited to add: But, okay, I suppose "kill all the Jews with Zyklon B"[1] was a novel form.
Part of the problem for Americans is that they have two definitions of rights. There's the ones in the Bill of Rights, which are phrased in a negative way. And there's those in the Declaration of Independence, which are provided by the creator and that governments must implement. And those rights are extremely broad. Heck, just the right to life could reasonably be argued to ban the death penalty. (Luckily for jurists everywhere, the Declaration of Independence isn't actually on the statute book.)
In practice, I think the distinction (and to be quite honest, pretty much the entire minimalist/constitutionalist approach) is mostly used to justify path dependence. The founding fathers believed that later generations would have enhanced understanding of the world. Fetishising their every decision just makes for a worse America.
In Europe/UK, the right to housing is often mentioned. That is a completely different can of worms. A state can try and fail to provide everyone access to housing. This is different to free speech. There is no such thing as well intentioned failure to protect speech.
They aren't special, though. The distinction between "positive" and "negative" rights completely melts away when you ask yourself who has substantive access and who merely has formal access to their rights.
For example, free speech. You can't exercise your right to free speech when you're dead. Everybody may have formal access (access on paper) to free speech but some people have far greater substantive access due to their socioeconomic status. A poor person will suppress their right to free speech in exchange for a job so they can buy food. Their employer, on the other hand, can say whatever they want without the risk of being fired. Same formal access, different substantive access.
This exercise works for any right. Perhaps the most obvious one is the right to a fair trial. It would be laughable if it weren't so horrific. Every day, countless people have their lives ruined by the criminal "justice" system because they cannot afford the best lawyer. Wealthy people simply do not have this problem. A person with a lot of wealth has far greater substantive access to a fair trial than the average person.
If you consider, say, a person living in the middle of a desert.
A right to privacy amounts to just being left alone, and enforcing that would only be required if another party were actively violating that right. <- It's easy to argue for this.
A right to water, on the other hand, might require that some other party be forced to provide water to this person in the desert. <- Here many people might quite reasonably argue; why should others put themselves out to facilitate this persons life choices.
You start to hit on the distinction a bit when comparing the Bill of Rights and the Declaration of Independence, but you seem to think the ones in the Declaration are less important.
The Declaration talks of "inalienable rights". These are rights that cannot be legitimately violated. That's not to say they can't be violated (slavery was obviously a thing), but that people and governments who violate them are wrong (tyrants, in the language of the Declaration).
So the lack of an enforced legal framework doesn't mean something isn't a right. It can mean that some organization or person is failing to be decent, though.
The "right to life" was more broadly talking about who owns a life (the individual, nature's creator, not the government). It wasn't talking about the right to be free of all death.
Not entirely. Consider the case of water privatization, where there's a real risk of extortionate pricing of what used to be a common good. If carefully written, right to water laws can ensure that such resources are used for the benefit of the people, instead of being just another market good that gets slowly monopolized.
Edit: In other words, you may already have the right to free speech, while water must be provided, but both can be denied.
Asserting it as a "fundamental right" raises the bar on what restrictions can be put. But reasonable restrictions can still be put.
A separate bench of the SC is now going to test the validity of the Aadhaar Act on the basis of whether the restrictions are reasonable in the light of privacy being a fundamental right.
Edit: The Aadhaar Act is an act that allows for the government to collect biometric and other personal data that can be used to identify an individual for various services (including but not limited to governmental benefits).
Because people sometimes tend to equate "fundamental" with "absolute", and assume that the right cannot be taken away from them under any circumstances. That is not correct.
> You didn't mention what type of restrictions can be put
What is a "reasonable restriction" has not been defined unequivocally - it is subject to interpretation of the courts.
An example is Article 21 of the constitution: No person shall be deprived of his life or personal liberty except according to procedure established by law
So a person's right to life or personal liberty can be restricted according to procedure established by law. That is why you find people in prison. Their fundamental right to liberty is restricted by a procedure established by law. Similarly, the fundamental right to privacy can be restricted by a procedure established by law.
"... the State can impose reasonable restrictions in the
interests of the sovereignty and integrity of India, the
security of the State, friendly relations with foreign
States, public order, decency or morality or in relation
to contempt of court, defamation or incitement to an
offence."http://planningcommission.nic.in/reports/genrep/rep_privacy....
Please read what he said, he is not saying that, the thing he quoted is, and that thing I believe is the constitution as it stands now.
By contrast, countries without a bill of rights are free to interpret their constitutions through implied rights, in ways that make sense in the context and allow the constitution to adapt to new or developing circumstances.
See for example, https://en.wikipedia.org/wiki/Australian_constitutional_law#...
Not entirely sure which side of that argument I'd sit on.
Unfortunately, that is not true. Robert Bork famously disputed it, even going so far as to deny the validity of the ninth amendment. Many conservatives support Bork's position today, e.g.:
http://www.nationalreview.com/article/336142/judge-borks-ink...
They do this because it's a logical pre-requisite for overturning Roe v. Wade.
It's really not, though, it's just a convenience; one could easily find grounds tomreverse Roe.and even the subsequent abortion decisions without just ignoring the Ninth Amendment. The real reason is that the Ninth Amendment is irreconcilable with the narrow mode of textualism that I personally think of as “four corners” or “sola scriptura” textualism, that seems to portray the Constitution’s text as complete and needing no external historical, cultural, etc., understanding to interpret. Because the Ninth Amendment specifically lays out that their are rights which existed and remain protected wothout being enumerated in the Constitution, it necessitates looking beyond the four corners of the Constitution to identify what those rights are.
No, it's not so easy. Conservatives have been trying unsuccessfully to overturn it for 44 years. (Actually, that's not quite true. The effort to overturn Roe didn't actually start until 1979, fully six years after Roe was decided on a 7-2 vote. And the truth is they don't really want to overturn it. They really just want to use it as a wedge issue.)
It's easy to construct a coherent interpretation of the Constitution that invalidates Roe without nuking the Ninth Amendment (the thing with fuzzy penumbras and unenumerated rights is that it is very easy to come up with equally coherent interpretations of what their scope is.)
It may be hard politically to get a Court majority appointed and confirms that agrees with eliminating abortion rights whatever the logical basis (or even without consensus on the basis; court decisions where there is a majority on the result but not the rationale are possible, so you don't need a unifying rationale to get a result.) But that's a different issue and nuke-the-Ninth types don't help that.
Really? What is it?
It's not. They could just rule that fetuses of a certain gestational age are actually people and ban late term abortions (with fair exceptions).
Or they could rule that those fetuses are people and leave it to individual states to decide how to balance the rights to privacy and speech in these cases. States have the ability to use capital punishment, so there's some precedence for encoding the limits of fundamental rights at the state level.
Late term abortions are already largely illegal even under Roe. The political constituency that supports overturning Roe is ideological; they want to ban ALL abortions. So you would need to declare not only that fetuses are people, but that embryos are people, and that is fraught with all manner of legal peril. Should embryos be counted in the census? What about frozen embryos?
> They do this because it's a logical pre-requisite for overturning Roe v. Wade.
I don't want to see Roe overturned, but I think the entire Griswold line is nonsensical. We have a perfectly good legal foundation for protecting abortion, which doesn't rely on conjuring rights out of "penumbras": https://www.washingtonpost.com/politics/courts_law/the-forgo....
No, unfortunately, we don't. A sound logical argument is not the same thing as a good legal foundation. Ginsberg's equal-protection argument has never been formally accepted -- or even considered -- by the court. And even on purely logical grounds it is fraught with peril because it assumes that a fetus is not a person. If a fetus is a person then they too are entitled to equal protection.
Personally I'd rather cast my lot with the right to privacy and the ninth amendment. I value that right far beyond its ability to protect reproductive freedom.
1. If the 9th amendment is interpreted to mean the courts can declare anything they think is a right, it allows unlimited power. "The Ninth Amendment obviously does not create federally enforceable rights."
2. Overturning Roe v. Wade wouldn't require much legal logic, except the precedent has been upheld several times. Without that, you could question any of steps it relies on:
a. there's an implied right to privacy (9th or 14th amendments)
b. the federal government has a mandate to enforce it
c. this right implies states cannot restrict abortion
d. the "balancing test" is legit, terminating the right in the last trimester
No, that's not true. The court can't just decide anything it wants. It can only decide cases that come before it. Before the court gets to decide anything there is a very long drawn-out process that filters out a lot of crap. Furthermore, the court has to decide on the basis of the arguments and evidence presented to it. The court can't just invent a new right out of whole cloth; it has to be on the basis of evidence that it is a right "retained by the people" who are, after all, the ultimate authority on everything, at least in theory.
> Overturning Roe v. Wade wouldn't require much legal logic, except the precedent has been upheld several times.
You undermine your own argument in the second half of this sentence. That's like saying, "Tearing down the pyramids at Giza wouldn't be very hard, except for moving all the stones." To overturn Roe you have to figure out why the original conclusion was wrong, and why all of the subsequent confirmations were wrong. That is not so easy.
It's obvious. The case was decided that way in the first place because the courts are political; they were "legislating from the bench".
The idea that the right to privacy implies the right to perform abortion seems like the weakest point to me. That argument only seems plausible if the right to privacy implies we can do anything to ourselves in private.
That's a ridiculous amount of power for a right which isn't even explicitly mentioned and way outside the Federal government's mandate. Not to mention inconsistent with many laws.
Is that not the case?
Similar ideas underlie the thought of the founders of the American constitution. The most fundamental rights are inherent- they do not need to be recognized separately. By including privacy among these rights, the Indian Supreme Court is making it more fundamental than e.g. freedom of speech or assembly.
Although I am far away and unaffected, I find this enormously encouraging. In a decade or two, the most populous country in the world will be a democracy with a fundamental respect for human life and liberty.
I find the above interpretation of privacy troubling. In order for the government to effectively distribute social services to the needy, cutting out corrupt/inefficient middlemen, it needs a way of effectively verifying someone's identity, so that people can't dual-enroll themselves. Having people provide biometric identifies such as Iris scans, if they want to qualify for government services, seems like a perfectly reasonable way to do this. I would also contend that when most people declare the importance of privacy, they are talking about their actions and lifestyle, not fingerprints or Iris scans. It would be sad if this ruling prevents the government from efficiently providing social services to help the poor.
Having a mobile number from a non-government entity is not a benefit provided by the government. Yet, the government's Department of Telecom (DoT) issued a notification asking all telcos to verify their subscribers using Aadhaar.
There are many other cases where the government has blatantly violated the Supreme Court orders that Aadhaar shall remain voluntary and that nobody shall be denied a benefit for want of having it.
If one is looking at solving problems of theft, there are other bigger places to look at and plug "leaks" instead of oppressing the poorest of the poor.
Biometrics, unlike passwords, cannot be replaced or changed if leaked. And people leave their fingerprints in many places, and iris scans have been easily and trivially captured with photos. [3] The system used in India is the actual biometrics of the person that doesn't allow any kind of replacement (there are ways to create variable biometrics).
Error rates of biometrics are also too high to ignore on a population the size of India. In environments with a smaller number of people, biometrics may help in uniquely identifying people.
[1]: https://rethinkaadhaar.in
[2]: https://scroll.in/topic/38792/identity-project
[3]:https://www.theregister.co.uk/2014/12/29/german_minister_fin...
"What about the poor people??"
What they really meant was: "We shouldn't allow poor people to escape our surveillance"
But it turns out that English is the official language of the Indian Supreme Court, and the court has even gone so far as to rule that it need not provide a Hindi translation of its rulings:
http://economictimes.indiatimes.com/news/politics-and-nation...
It seems kind of bizarre to me that as an American English speaker half way across the world, I'm in a better position to read and comprehend the Indian Supreme Court's rulings than a great number of non-English-speaking Indians.
[0] http://www.un.org/en/universal-declaration-human-rights/
So before this judgment, the legislature could have for example made a law requiring all internet activity to be reported to the government or criminalized homosexuality (existing law) and anyone challenging the law could not claim that the law violated his privacy as such a right was not recognized.
After this judgment, such an argument could be made and the courts would test whether the violation of one's privacy is a reasonable restriction or not. So a law requiring you to have number plates on your car to be captured by traffic cams, or KYC norms for Bank accounts, reporting of your financial data to tax authorities could be held to be a reasonable restriction whereas laws such as criminalizing one's sexual orientation could be held unreasonable.
What prompted this constitutional reference was the governments 'Aadhar Scheme' which compelled 1.2 billion citizens to hand over their private biometric data to the government if they wanted to claim any government services. This judgment provides the test to be used while deciding whether the law and its applications are constitutional. Most likely the scheme will not be struck down in total but specific instances will be tested on a case by case basis. (eg. Aadhar can't me made compulsory for getting health services but can be made so for a Gun Licence as the latter seems reasonable but the former may not)
edit: The judgement is now available here: http://supremecourtofindia.nic.in/pdf/LU/ALL%20WP(C)%20No.49...
That this was an unanimous verdict makes it even better. I was apprehensive until today morning, and after hearing the verdict, I've been ecstatic!
Lot of partisan voting going on here
Also this is the man behind the fight
https://barandbench.com/expecting-unanimous-decision-justice...
> He said that in developing countries, something as amorphous as privacy could not be a fundamental right, that other fundamental rights such as food, clothing, shelter etc. override the right to privacy.
It's a question which has alway bothered me. What happens when two fundamental rights clash with each other?
On the other hand, the Aadhaar program (which is the context the above argument was made for) can be viewed as impinging on the fundamental "Right to Constitutional Remedies" as its governing body the UIDAI is set up in such a way that the UIDAI itself has sole authority on whether or not a grievance needs the intervention of the established judicial system[1].
[0]https://en.wikipedia.org/wiki/Fundamental_Rights,_Directive_...
[1]http://www.firstpost.com/tech/news-analysis/the-uidai-has-in...
This is not true. Food, water, education and shelter are fundamental rights under Article 21.
Although article 21 itself doesn't say anything about food, shelter etc, the courts have established precedent by including those in their interpretation of article 21 and the directive principles in the past. However, I'm not sure there has been a ruling specifically affirming those rights as being fundamental, and the text of the constituion definitely does not mention them as fundamental rights. The full text of Article 21 is simply: "No person shall be deprived of his life or personal liberty except according to procedure established by law."
Since the right to education is specifically included under Article 21(A), it is a fundamental right.
In the specific case of Aadhaar and UIDAI as they currently exist, I think the "Right to Privacy" which has now been affirmed, and the "Right to Constitutional Remedies" (Article 32) should take precedence.
Right to clothing isn't mentioned anywhere as far as I can tell.
Yes, there are rulings specifically affirming food, water etc. as fundamental rights.
The implication seems to be that it's the collection of personal information in excess of that needed to perform the function appropriately - why do you need iris scans and fingerprints, when a name and a photo would arguably be sufficient?
Your argument and many similar ones are now boring and have been countered enough times already.
Not sure if you are aware, but the context around this specific discussion in India is around the use of Aadhar for targeted govt. assistance. The govt. position is pretty much that we need Aadhar for any subsidy and the courts are arguing against it.
Aadhaar as of now is a direct coercion to part with biometrics and has inadequate features to protect against identity theft. Not having aadhaar means not getting driving license, passport, marriage license etc.
In HN fashion, if you are interested to know about how the govt pulled of the huge technical overhead of storing billion records; it could be seen in talk here by it's chief architect - https://www.youtube.com/watch?v=08sq0y8V1sE
https://www.nytimes.com/2017/08/22/world/asia/india-muslim-d...
"In India, Muslim men have been able to end their marriages by saying the word “talaq” — Arabic for “divorce” — three times. They could do this in person, by letter or even over the phone."
Also, I recall the Indian Government was pushing Aadhar Pay - a biometric fingerprint scan based PoS payment / verification system (likely it is already deployed, I don't live there so I don't know). What happens to that now?
When the Government of India (GoI) mandated Aadhar for provision of many services (subsidies, marriage certificates, death certificates, collect taxes- people without aadhar can no longer pay income tax - etc) it was challenged legally in the courts. One of the main arguments was that Indian citizens had a fundamental right to privacy, and such 'enforced' collection of biometrics violated that right.
The Attorney General (appearing for the government) argued that there was no such fundamental right, and that citizens had no right to privacy.
This (whether or not privacy is a fundamental right) had to be resolved before these cases could move forward.
So the question was 'forwarded' to a 9 judge 'constitutional bench' to rule upon. Today all 9 judges ruled that Indian citizens had a fundamental right to privacy.
so now the Aadhar specific cases can go forward, now that there is a 'constitutional bench' ruling. A 5 judge bench will now consider those cases and rule upon the legality of Aadhar enforcement.
This ruling, that privacy is a fundamental right, will obviously affect the outcome of the Aadhar specific case(s) but how exactly - including what restrictions if any, could be placed on biometric collection via aadhar - is not known (yet).
That is my non lawyerly understanding of where things stand.
This is a 'high level' ruling, which unlocks the 'deadlock' on the cases about the legality (or otherwise) of biometric collection via Aadhar for specific government schemes.
The Attorney General's argument that citizens have no fundamental right to privacy has been invalidated/overruled/whatever-the-correct-legal-term-is, by the constitutional bench. He (and his team) have to find new arguments now. [1]
The lawyers of both sides on those cases, now have to proceed on the assumption that privacy is a fundamental right. The pro-govt (so pro -aadhar) side will likely argue for 'reasonable restrictions' on the right. The anti govt side will likely argue that such restrictions are not 'reasonable' and that aadhar violates fundamental rights (or so my lawyer friends tell me [2]).
[1] Tangential: The AG who made that argument has retired, and there is a new AG who will appear for the government.
[2] They are probably oversimplifying, so I can get the gist, the same way I would if I had to explain some complex programming to them. I'm not a lawyer. :-)
"Aadhaar hearings were gridlocked, withtout this judgement. Now it's legality will be tested."
Citizens don't have absolute right on their body, privacy argument bogus, govt tells SC
http://www.firstpost.com/india/aadhaar-mandatory-citizens-do...
It would be interesting to see if there are more specifics w.r.t data security in the judgements. I smell a criminal lawyer cooking up the ways this judgement would aid his clients for not opening their computer, smartphones to police!
The judgement would be widely shared worldwide, the people outside India who isn't familiar with Supreme court judgements from India; keep Merriam-Webster nearby.
Corruption is hardly a technology issue, especially in an environment where corruption is so passe and enjoys patronage from the entirety of the polictical spectrum. Example, to disrupt the blackmarket of kerosene they started dyeing it, and that mattered zilch, because people were selling and buying dyed kereosene in the blackmarket without batting an eyelid. Everyone looked the otherway... wink wink.
On a related but tangential set of events: none of the bigwigs caught in the demonetization net had connections with the current party in power, but had patrons among the others. It is possible that the current party (/alliance) is so pristine and pure that they none of their members have any link with the illegal cash hoarders and there is no actionable evidence. I just dont find that a realistic explanation. A claim like that will need a lot stronger evidence.
But anyway, you did not comment on the fact that corruption is not a technological problem and technology will not solve it (and has not solved it). It still would be great to know why would Aadhaar succeed where others have not.
BTW I am sincerely willing to be convinced, but I do swear by the guideline that exceptional claims need comparably exceptional evidence or a reason.
Not at all. I want to learn and soak in the opinion and form/reform my own. I am quite sure citizens on the different sides of this argument have sincere good intentions as their motivations.
But on the other hand, all this makes it so easy to track anyone. All your bank accounts, cards, phone numbers, internet connections would be linked to your Aaadhar number and would be centrally accessible. This is a privacy nightmare. I am already getting frequent messages from my phone company to link my phone number with my Aadhar number, or let it be deactivated.
All this information would be in the hands of government officials. The Indian bureaucracy is notorious for the corruption everywhere. What if you could purchase somebody's data through an "agent" - get access to everything that they do, everything they buy, everyone they transact with, everyone they communicate with, contents of every message they send to anyone at all - imagine the kind of possibilities this opens up for negative minds.
Besides this, someone could just hack the data and maybe leak all of it. Someone recently created an app that would let you get anyone's details including their phone number, address, etc. by typing in their Aadhar number. It was taken down a month ago. I'm not sure about the exploit but it was related to using plain http instead of https somewhere. I checked one of the Aadhar linked projects and found that they were using an open source library in the backend which wasn't up to date, and the version being used had some documented security vulnerabilities. I wonder how safe peoples' data really is.
A large number of Aadhar numbers have already been leaked thanks to government websites. It is possible to extract a person's fingerprint or iris scan using photos of their hands or the face in specific conditions. If the person has linked their bank account with Aadhar which is getting compulsory, one could take out money from their accounts by impersonating their prints or iris scans. Fortunately there is an option to protect yourself from this - go to the Aadhar website and lock your biometrics data. If used regularly this can protect people from "biometrics theft", but the biometrics are unlocked by default, and for 99% of the people they are going to stay that way.
Welcome democracy. Bye bye mobocracy!
Fair warning: its pretty long (547 pages!)
[0]http://supremecourtofindia.nic.in/pdf/LU/ALL%20WP(C)%20No.49...
Using this logic, just recently I somewhat won an argument with my fiancee. She always believes that I'm hiding something on my phone because she doesn't have PIN to it and because I'm unwilling to give it to her, she assumes the worst.
Therefore I made a bet. I asked her what is she doing in bathroom? She answered she does what everyone else's is doing: #1, #2 or showering. I replied you must be doing something wrong or maybe illegal, since you always not only close the door, but you lock it as well! We had short argument back and forth about obviously how it is not about hiding something, but rather about enjoying your own time in privacy, and I think she kind of got it.
We have a bet in place for 3 months now that when she leaves the door wide open while in bathroom, I will give her code to my cellphone. So far I haven't had the need to give it out just yet :)
I'm not quite sure where you'd set the boundaries.
https://drive.google.com/file/d/0B8zp4Q3w9CfqRTA0YUd4clY1RFE...
Aadhaar is setup as a way of proof of identity and not proof of citizenship. I for one did not get an Aadhaar until a week ago! The only reason I had to was a company that I applied to, said that please use your full name as mentioned on your Aadhaar card.
India is a bureaucratic mess. And as UG Krishnamurti put it very succinctly, India is a failed country. As mentioned elsewhere in this thread, we desperately first need to focus on poverty first.
Poverty is difficult to address in a nation as large as India. Such a problem quickly approaches intractability. What are some solutions you envision to help alleviate poverty? There could very well be a huge opportunity for a startup in this space.
I feel like without requiring Aadhaar for benefits, it's impossible to ascertain or measure who is really under the poverty line or not.
Yet, Aadhaar is officially accepted by the Ministry of External Affairs as proof of identity and proof of address to issue a passport (which is signed by the president of India and is a proof of citizenship). [1] So any resident in India who qualifies for Aadhaar can also get a passport. Aadhaar is sneaky and messy in more ways than one.
[1]: http://passportindia.gov.in/AppOnlineProject/docAdvisor/atta...
Whether or not this restriction also applies to end users and non-ISP organizations hasn't yet been tested in the judicial system AFAIK.
AFAIK, the government has not attempted to prosecute anyone for using stronger encryption, and other government departments/organizations have made conflicting recommendations, especially when it comes to online banking and capital markets. Barring new regulations that clarify the government's position, the status quo is that ISPs cannot apply strong encryption themselves, but are not obligated to prevent their users from doing so.
At least one ISP has gone beyond this mandate and tried to block the use of stronger encryption by their customers[0].
[0]https://www.privateinternetaccess.com/blog/2017/07/indian-is...
Does Right to Privacy mean that the govt. cannot identify individuals ? How does it then provide differential services ?
Even with such existing 'weaker' identities we are nowhere close to the quality of service that such 'weak' identies can support. Lets address the problem and not divert the issue with "shiny tech... look a squirrel". I would be more sympathetic if we are already in the ballpark of the quality of service that these 'weak' identities can support and we are getting bottlenecked there.
To put it charitably, with Aadhaar we are optimizing something that is not the bottlneck.
You must read the judgement & the cases they cite before making such blanket, unsubstantiated assertions. There's been a history of cases that this judgement rests on, many of which guided & led to the conclusions drawn by this 9 panel of judges. [1]
I don't understand what value a blanket statement such as this adds to the conversation. Do you believe things were better in the 1970s? 1980s? If so, please substantiate your belief with evidence.
Do you subscribe to the trivial, cynical notion that our society is going to dogs? if so, let us have a conversation on why I disagree. But seemingly empty, vacuous but emotive statements such as these do not necessarily lend themselves to constructive discussion, IMO.
[1] http://supremecourtofindia.nic.in/pdf/LU/ALL%20WP(C)%20No.49...
Aadhaar could still be a fait accompli for the government and continue, which would be sad in many ways. If you believe Aadhaar is the best thing since sliced bread and has no issues, please check Rethink Aadhaar [1] for the issues as well as the history of the cases and have a look at Scroll's Identity Project. [2]
Your responsibility :
1. Don't share things that you want to keep private.
2. Carefully weigh the trade offs when you agree to share things about you. There is no retroactive privacy on things that you yourself shared.
3. You can attempt to retract what was shared about you, but you can't hold society responsible for successful retraction of that piece of information, from media or minds. You can add addendum e.g. an apology from someone, you can claim damages, but we can't rewind time.
Government responsibility:
1. Don't criminalize people trying to keep things private. This would be similar USA Fifth Amendment, do not force people to share what they don't want to share. Government can ask "What crimes you committed in the privacy of your home?", but it can't force people to answer that question or punish for not answering it.
2. You can't plead fifth and deny proving your identity when you want to take food stamps from government, or when you get unearned tax credit. Just like in any transaction, Government can ask you to prove who you are and may demand increasing levels of proof depending on the transaction. Your choice would be to not participate in such transactions, in certain situations you implicitly give permission to Government to demand proof of identity from you, e.g. if you request a loan to dig a well or subsidy to buy fertilizer or collecting unemployment benefit. Security of exchange of money from government to people is Government's responsibility and it may demand increasing levels of identification depending on the nature of the transaction, as deemed appropriate by abused observed or potential for abuse. In places with high corruption rates, strong identification would be required and would be appropriate. I don't think people would be OK if someone collects their pension using just name, address and birth date, and government throwing hands in the air accusing you for not protecting your name, address and birth date.
What you can't do:
1. Make the world forget what it already knows. Can't ask Google to delete a piece of information about you from entire internet, once you yourself post it on Blogger. You can delete the post from Google, you can delete your account, but you must realize that once something is not private, you have no control over who has seen it and how many formats/copies of that information got created.
2. Get into a contract to drop certain privacy and then deny fulfilling the contract because of privacy rights. E.g. a model can't say that she won't show her face on a fashion ramp because of privacy after taking payment. A storybook author can't say that she won't share her book with publisher because of privacy after taking payment.
3. Make a demand that a private entity, on its private premises, can't have monitoring equipment. A store may decide to have cameras at the self checkout lanes, and it may deny self checkout to folks with full face covering. Your choice would be to not shop at such places, you can't use law to shut down the business's ability to monitor their private premise as they wish. An employer may make alcohol breath analyzer test required e.g. for a surgeon before surgery, a pilot, air traffic control at the start of the duty, or a long distance train driver. The employees in this case can't claim privacy rights to deny such tests.
4. When you are in public place e.g. a sidewalk, you are participating in a public endeavor that comes with you dropping the privacy protection e.g. compared to what you would get in your bedroom. The rays of light that bounce off of you or your belonging are fair game to be captured. Photographers do not need to take your permission to capture rays of light that are travelling in their direction when they stand on a public place or a private place they own or a private place where the owner has given them permission to capture the rays. Those photographs can only be used for personal consumption or for non-profit activities e.g. an investigation, news reporting. Any commercial use of the photo e.g. in an product advertisement, would require release agreement from the person in the photo.
I think Strong Privacy and Strong Identification both are required, for some things they are mutually exclusive, in some parts you trade one for another. Authentication/Authorization/Encryption/Non-Repudiation is needed to deliver these rights.
Consider this, if privacy laws are absolute in every aspect of life then you can't have antitrust laws that stop competitors from fixing prices or agreeing to anti-competitive behavior. If privacy laws are absolute then smartphone apps that capture photo/video of an crime unfolding won't be allowed due to privacy concerns of the criminal. If you can keep something private (lock the door to your room, your safe deposit box), no one will force you to expose it, but one can't demand privacy in situations that naturally expose information to others, unless you explicitly set the expectation of privacy (attorney-client, doctor-patient, a service provider) as part of a contract. Government may make laws to cover most common situations e.g. your real estate agent sharing your budget with the seller of the property, your medical records etc.
Privacy law is natural. What I draw and erase on a doodle board in the privacy of my home is my business, you can't force me to divulge it. What I say in my head to myself is my business, there is no thought crime. What I sing when on a trail is my business, no one can force me to say which song I sung. When government or corporation tries to invade the natural privacy, it should be stopped. In that regard, privacy is a fundamental right. But, privacy can't be claimed to hide criminal record from your neighbors or employers.
More of me trying to sort it out in my own head.
http://www.planetbiometrics.com/article-details/i/6211/desc/...
http://www.planetbiometrics.com/article-details/i/6206/desc/...
http://www.planetbiometrics.com/article-details/i/6219/desc/...