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Right to Privacy a Fundamental Right, Says Indian Supreme Court

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Re: Right to Privacy a Fundamental Right, Says Indian Supreme Court

#81

Post by plinkplonk »

fwx wrote: post #80
plinkplonk wrote: post #75

Earlier quoted context omitted.

(not a lawyer, but have friends who are) 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 biometr…

So, basically, this has opened the door to debate about the legality of collecting biometrics, but we still have to wait for official rulings to see if a stop is put to collecting that data under the Aadhar umbrella?

That is how I understand it, yes.

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. :-)

Re: Right to Privacy a Fundamental Right, Says Indian Supreme Court

#83

Post by Ntrails »

MereInterest wrote: post #36
lisper wrote: post #27

Earlier quoted context omitted.

> Nobody disputes that the Bill of Rights is not exhaustive. 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.

Which is really messed up, given that the Ninth Amendment explicitly states that the Bill of Rights should not be taken as an exhaustive list.

That's the least messed up part, if you dispute the validity of the ninth and it is also the first to explicitly state that the previous list is not exhaustive, then clearly your position is consistent...

Re: Right to Privacy a Fundamental Right, Says Indian Supreme Court

#84

Post by icebraining »

rmc wrote: post #74
dalbasal wrote: post #54

A lot of conversations about expanding rights, end up with a distinction between positive and negative rights. A right to water, is different to free speech. For everyone to have a right to water, someone needs to provide the water or be held accountable for not providing it. A default, state culprit needs to be designated. Privacy though, privacy is like speech or equality before the law or presumption of innocence.…

> A lot of conversations about expanding rights, end up with a distinction between positive and negative rights. 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, conscien…

Right to a fair trail is also a positive right.

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.

Re: Right to Privacy a Fundamental Right, Says Indian Supreme Court

#85

Post by moomin »

dalbasal wrote: post #54

A lot of conversations about expanding rights, end up with a distinction between positive and negative rights. A right to water, is different to free speech. For everyone to have a right to water, someone needs to provide the water or be held accountable for not providing it. A default, state culprit needs to be designated. Privacy though, privacy is like speech or equality before the law or presumption of innocence.…

In practice I think the positive negative distinction is somewhat pointless. All rights, regardless of their "nature" require enforcement and consistent interpretation and neither of those things come for free.

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.

Re: Right to Privacy a Fundamental Right, Says Indian Supreme Court

#86

Post by eklavya »

devnonymous wrote: post #72
eklavya wrote: post #23

Earlier quoted context omitted.

I am sure you meant marriage certificate, everybody has an undeniable license to marry :D

While I know you were making fun of the word 'license', what you claim is not true legally in India.

What do you mean?

Re: Right to Privacy a Fundamental Right, Says Indian Supreme Court

#87

Post by eklavya »

ahamedirshad123 wrote: post #71
eklavya wrote: post #38

Earlier quoted context omitted.

It's not a matter of would, it already has. So many subsidy/benefits accounts have been closed. Just search for news stories on this.

What was your opinion about Aadhaar before 2014? Same as your dear leader?

You should try to conceal your prejudices about people better.

Re: Right to Privacy a Fundamental Right, Says Indian Supreme Court

#88

Post by sametmax »

TheSpiceIsLife wrote: post #79
dalbasal wrote: post #54

A lot of conversations about expanding rights, end up with a distinction between positive and negative rights. A right to water, is different to free speech. For everyone to have a right to water, someone needs to provide the water or be held accountable for not providing it. A default, state culprit needs to be designated. Privacy though, privacy is like speech or equality before the law or presumption of innocence.…

> 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. 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 to…

The limit is action. Words are not important.

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.

Re: Right to Privacy a Fundamental Right, Says Indian Supreme Court

#89

Post by bckygldstn »

TheSpiceIsLife wrote: post #79
dalbasal wrote: post #54

A lot of conversations about expanding rights, end up with a distinction between positive and negative rights. A right to water, is different to free speech. For everyone to have a right to water, someone needs to provide the water or be held accountable for not providing it. A default, state culprit needs to be designated. Privacy though, privacy is like speech or equality before the law or presumption of innocence.…

> 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. 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 to…

Many countries have limitations to free speech (e.g., Germany banning holocaust denial, Sweden banning hate speech) but have a free and open culture in spite of this. It's a hard balance to strike, but freedom of speech doesn't have to be all or nothing.

https://en.wikipedia.org/wiki/Freedom_of_speech_by_country

Re: Right to Privacy a Fundamental Right, Says Indian Supreme Court

#90

Post by eklavya »

srean wrote: post #46
eklavya wrote: post #38

Earlier quoted context omitted.

It's not a matter of would, it already has. So many subsidy/benefits accounts have been closed. Just search for news stories on this.

I doubt that is anything new. Political parties in power try to squelch the money stream of its competitors. Aadhaar or no Aadhaar they will find a way and have (sometimes they would rather look the otherway and share the 'profits'). 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 p…

You may think I don't have an argument and rightfully so, but honestly I don't care enough to search for all the news items where this was established.
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