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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

#41
post #27
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 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.

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

#42
post #18

I for one, have no idea what this really means. Can anyone explain why this ruling is not totally useless ?

Currently, Indian govt is making it mandatory for everyone to have AADHAR card(enrolment of which requires biometric scan) for basic services like opening bank account, provident fund, filing income tax returns etc, making it necessary for everyone to enroll for AADHAR. This judgement will be used for removal of AADHAR requirement.

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

#44
“Privacy is about the freedom of thought, conscience and individual autonomy and none of the fundamental rights can be exercised without assuming certain sense of privacy”. argued Mr.Subramaniam.

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.

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

#45
post #30

A word of caution before being carried away by the words "fundamental right". According to the judgement, the right to privacy is fundamental (as an offshoot of the fundamental rights of freedom of life and personal liberty guaranteed under Article 21 of the Indian Constitution). Asserting it as a "fundamental right" raises the bar on what restrictions can be put. But reasonable restrictions can still be put. A separ…

At least put in some effort to explain on what you mean. You didn't mention what type of restrictions can be put in as well as why getting carried away by the words fundamental right is something to be cautious about.

"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 incitement to an
  offence."

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

#46
post #38
post #29

Earlier quoted context omitted.

And why would that change with Aadhaar ? 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…

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 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.

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

#47
post #30

A word of caution before being carried away by the words "fundamental right". According to the judgement, the right to privacy is fundamental (as an offshoot of the fundamental rights of freedom of life and personal liberty guaranteed under Article 21 of the Indian Constitution). Asserting it as a "fundamental right" raises the bar on what restrictions can be put. But reasonable restrictions can still be put. A separ…

At least put in some effort to explain on what you mean. You didn't mention what type of restrictions can be put in as well as why getting carried away by the words fundamental right is something to be cautious about.

> as why getting carried away by the words fundamental right is something to be cautious about.

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.

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

#48

I'm not sure what this has to do with Aadhaar, although the initial petition mentions it I think. 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…

> 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.

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

#49
A lot of comments in this thread are misleading. What the Supreme Court has done is that it has expanded the interpretation of an existing Fundamental Right ('Right to life') to include a 'Right to Privacy'. Now this means that if any law is made that infringes on an individuals privacy then it'll be tested for reasonableness.

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)

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

#50
post #4

As it should be. The world is quickly approaching a very Orwellian feature unless we take steps to stop it. Right to privacy should be right up there with the right to free speech.

It is, according to the article 12 of the Universal Declaration of Human Rights [0]. It just gets conveniently sidetracked when money is to be made.

[0] http://www.un.org/en/universal-declaration-human-rights/

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