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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

#101

Post by dalbasal »

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…

We can certainly have limits in polite society, just not in public life.

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.

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

#102

Post by humanrebar »

moomin wrote: post #85
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,…

> All rights, regardless of their "nature" require enforcement and consistent interpretation and neither of those things come for free.

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.

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

#103

Post by Qantourisc »

dieterrams wrote: post #97
icebraining wrote: post #84

Earlier quoted context omitted.

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.

The right not to be unfairly tried is easily satisfied by not having a trial at all. 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 ag…

There is still the option to mandate both. (No unfair tried, and a fair trial.)

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

#104

Post by vkrm »

denzil_correa wrote: post #77
vkrm wrote: post #19

Earlier quoted context omitted.

IMO, this is a specious argument, especially in the Indian context. Access to food, clothing, and shelter are NOT fundamental rights[0]. 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…

> Access to food, clothing, and shelter are NOT fundamental rights This is not true. Food, water, education and shelter are fundamental rights under Article 21.

IANAL and I could be wrong here, but I think thats only partially right.

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.

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

#105

Post by abhi3 »

fwx wrote: post #69

Can someone more well-versed in Indian law help me understand : Does this ruling prevent collection of biometrics or restrict it somehow under the Aadhar system? 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?

I explained that in another comment: https://news.ycombinator.com/item?id=15088404

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

#106

Post by humanrebar »

bckygldstn wrote: post #89
TheSpiceIsLife wrote: post #79

Earlier quoted context omitted.

> 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

If dissenting speech is stopped, how will the public ever know when an argument is illegitimate and when it is merely dangerous to the ruling class?

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.

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

#107

Post by humanrebar »

lisper wrote: post #27
rayiner wrote: post #16

Earlier quoted context omitted.

At least in the U.S., that is not the real issue. Nobody disputes that the Bill of Rights is not exhaustive. But just because the Bill of Rights is not exhaustive does not mean that the Supreme Court may make up new rights over time. Legal conservatives in the U.S. adhere to the idea that for a right to exist, society must have recognized it as a right at the time the Constitution was written. In other words, you do…

> 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.

> They do this because it's a logical pre-requisite for overturning Roe v. Wade.

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.

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

#108

Post by rlpb »

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. To uphold it, the state must pay for a lawyer...

Nope. The state could just choose not to prosecute.

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

#109

Post by vkrm »

product50 wrote: post #56
vkrm wrote: post #45

Earlier quoted context omitted.

"Reasonable restrictions" are not very well defined in the Indian constitution. They are quite broad and open to interpretation on a case-by-case basis. "... 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 incit…

Can reasonable restrictions be put on fundamental rights as well? So you are suggesting that the right to life has reasonable restrictions -- that in order to be friendly to a foreign state, the nation state can murder their citizens?

I'm not suggesting anything, the Constitution of India specifically allows for "reasonable restrictions". The right to life does have restrictions - the death penalty is still legal in India.

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

#110

Post by icebraining »

dieterrams wrote: post #97
icebraining wrote: post #84

Earlier quoted context omitted.

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.

The right not to be unfairly tried is easily satisfied by not having a trial at all. 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 ag…

A trial and especially a fair trial are undeniably interventions on how things would otherwise proceed

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.

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