
Right to Privacy a Fundamental Right, Says Indian Supreme Court - sandGorgon
https://thewire.in/170303/supreme-court-aadhaar-right-to-privacy/
======
dalbasal
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. 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.

~~~
TheSpiceIsLife
> _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 tolerant without limit, their ability to be tolerant
will eventually be seized or destroyed by the intolerant._

1\.
[https://en.wikipedia.org/wiki/Paradox_of_tolerance](https://en.wikipedia.org/wiki/Paradox_of_tolerance)

~~~
moduspol
Are we really to the point where Nazi ideologies are spreading like wildfire,
to the point that their "intolerance" will be seized by our "tolerance?"

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.

~~~
bluGill
I would argue we have gone the other way: we are so busy stomping down Nazi
like ideologies that the stomping it down has become as bad of hate speech as
the Nazis were.

~~~
bashinator
Until the government begins a mass extermination program for haters, I can't
help but feel this is a hyperbolic argument. Not granting permits to march is
totally incomparable with genocide.

------
msravi
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 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).

~~~
product50
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.

~~~
vkrm
"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."

~~~
product50
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?

~~~
srean
> So you are suggesting that the right to life has reasonable restrictions

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.

------
ruytlm
As an aside, this is a decent example of why some people oppose bills of
rights. As I understand it, the argument is that a bill of rights is
considered exhaustive; if it's not in the bill, it's not protected.

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#...](https://en.wikipedia.org/wiki/Australian_constitutional_law#Implied_rights)

Not entirely sure which side of that argument I'd sit on.

~~~
rayiner
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 not have to find the right in the Bill of
Rights, but you do have to find it _somewhere_.

~~~
lisper
> 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...](http://www.nationalreview.com/article/336142/judge-borks-ink-blot-
ramesh-ponnuru)

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

~~~
dragonwriter
> 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.

~~~
lisper
> one could easily find grounds to reverse Roe

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.)

~~~
dragonwriter
> No, it's not so easy.

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.

~~~
lisper
> It's easy to construct a coherent interpretation of the Constitution that
> invalidates Roe without nuking the Ninth Amendment

Really? What is it?

------
whack
" _The petitioners, former Karnataka high court judge Justice K.S. Puttaswamy
and others, had contended that the biometric data and iris scan that was being
collected for issuing Aadhaar cards violated the citizen’s fundamental right
to privacy "_

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.

~~~
satbyy
Not really. He means that govt cannot _force_ every citizen to undergo iris
scan etc. for obtaining Aadhar card. I would like to get Aadhar without iris
scan (and am willing to let go of secondary benefits like LPG subssidy etc).
Such an option doesn't exist as of today. _I_ , as an _individual_ , will
exercise my right to privacy by deciding whether to give my biometrics or not.
Govt should not decide on my behalf.

~~~
programmer_dude
An Aadhar card is just an identity document. You don't have to get one if you
don't want any benefits linked to it. Just use some other ID.

~~~
satbyy
There are already "benefit" cards like LPG card, ration card, BPL card, etc to
get those benefits. Why bother with Aadhar then? The answer is, consolidation.
Aadhar is meant to be _the_ identity card. I don't want to carry big passport
book, etc. wherever I go.

~~~
wtmt
That consolidation, when combined with biometrics, means you can never get it
replaced. Your only recourse to identity theft with your biometrics, or the
fact that biometric error rates are very high, is to just live with it.

------
jawns
I was a bit surprised by the fact that all of the judges' opinions, which are
embedded in the article, were in English.

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...](http://economictimes.indiatimes.com/news/politics-and-nation/court-
language-is-english-says-supreme-court/articleshow/50080870.cms)

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.

~~~
jogjayr
Language is political in India and I don't claim to understand half of it.
Probably since the establishment of the republic after attaining independence
there's been a tension between Hindi-speakers (who were the plurality of the
population) and others. English was a "neutral" language and it helped that a
lot of the administration, bureaucracy, and law carried over from the British
already used it. Not to mention that the most influential leaders of the
independence movement (Jawaharlal Nehru, Mahatma Gandhi, Sardar Patel) were
lawyers educated in England.

------
bhhaskin
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.

~~~
galloway
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/](http://www.un.org/en/universal-declaration-human-rights/)

------
sreeni_ananth
The Indian government has been mandating all utility providers to link the
biometric details of the subscribers to their account. With the rising number
of criminal cases due to misuse of laws such as those used in marital
disputes, the government can easily control what services to provide or deny
its citizens based on centrally available biometric database which it could
not have done before. Of course this is just a crazy theory for now which can
hopefully never happen due to this much needed judgement.

------
abhi3
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)

------
vkrm
I'll wait for the full text of the judgements before celebrating. The ruling
apparently consists of 6 judgements and should be available shortly. Hope this
reins in the Aadhaar monster without leaving any wiggle room for the
government to exploit.

edit: The judgement is now available here:
[http://supremecourtofindia.nic.in/pdf/LU/ALL%20WP(C)%20No.49...](http://supremecourtofindia.nic.in/pdf/LU/ALL%20WP\(C\)%20No.494%20of%202012%20Right%20to%20Privacy.pdf)

~~~
sn41
What a fantastic document. Quotes from John Stuart Mill, precedents from
India, UK, US, South Africa, Canada, and the European charter. Looks like a
very scholarly judgment, worthy of study, worth every one of the 597 pages!!

~~~
wtmt
I've read only a few parts of the judgment, but it reads like poetry while at
the same time being crisp and powerful! Even when the hearings were on, there
were many references and discussions that showed the broad scope of accepting
and considering jurisprudence from elsewhere and seeing what would benefit
people.

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!

~~~
srean
Sorry that someone down voted you. I used to get puzzled by such behavior, now
no more. I just upvotes it back to compensate, if only partially.

Lot of partisan voting going on here

~~~
wtmt
Thanks. I'm kinda used to that on HN since many people who read my comments
seem to be absolutely pro-Aadhaar/pro-government and don't seem to like any
critique of the system and how it's putting people in danger (existentially
and otherwise).

------
j0hnM1st
This is such a relief ...

Also this is the man behind the fight

[https://barandbench.com/expecting-unanimous-decision-
justice...](https://barandbench.com/expecting-unanimous-decision-justice-ks-
puttaswamy-right-privacy-verdict/)

------
denzil_correa
Here's what the Attorney General - the government counsel - argued

> 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?

~~~
vkrm
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 or not a grievance
needs the intervention of the established judicial system[1].

[0][https://en.wikipedia.org/wiki/Fundamental_Rights,_Directive_...](https://en.wikipedia.org/wiki/Fundamental_Rights,_Directive_Principles_and_Fundamental_Duties_of_India)

[1][http://www.firstpost.com/tech/news-analysis/the-uidai-has-
in...](http://www.firstpost.com/tech/news-analysis/the-uidai-has-insulated-
itself-from-any-blame-or-responsibility-for-leaks-in-the-aadhaar-
ecosystem-3702123.html)

~~~
denzil_correa
> 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.

~~~
vkrm
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.

~~~
denzil_correa
> 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

Yes, there are rulings specifically affirming food, water etc. as fundamental
rights.

------
Abishek_Muthian
To HN readers outside India, who are unaware of the BG behind this historic
judgement. It all started off with a series of litigations against the govt's
mandate to link India's unique identity system - Aadhar (which includes
biometric data) to existing Indian identification systems for different
purposes.

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.youtube.com/watch?v=08sq0y8V1sE)

------
trhway
seems like they had a good session - from other news they took down that
instant Muslim divorce. As one can guess that divorce procedure isn't gender
symmetric.

[https://www.nytimes.com/2017/08/22/world/asia/india-
muslim-d...](https://www.nytimes.com/2017/08/22/world/asia/india-muslim-
divorce-triple-talaq.html?mcubz=3)

"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."

------
fwx
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?

~~~
plinkplonk
(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 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.

~~~
fwx
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?

~~~
plinkplonk
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. :-)

------
ahamedirshad123
This is what Indian government said:

Citizens don't have absolute right on their body, privacy argument bogus, govt
tells SC

[http://www.firstpost.com/india/aadhaar-mandatory-citizens-
do...](http://www.firstpost.com/india/aadhaar-mandatory-citizens-dont-have-
absolute-right-on-their-body-privacy-argument-bogus-govt-tells-
sc-3420398.html)

------
Abishek_Muthian
“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.

------
eklavya
Not sure what will happen, I want both this and Aadhar.

~~~
srean
Could you elaborate on your definition of 'Aadhaar', or stated in other words
what is it that you want 'Aadhaar' to provide ?

~~~
eklavya
The plea is also about invalidating Aadhar, if that is also done it would be a
huge setback to all developmental activities. A safeguarded, private Aadhar is
the way to go in my opinion.

~~~
saifalfalah
Any development activity that can be done with Aadhar, can be done without it
too.

~~~
eklavya
That has been tried for decades with rampant corruption and needy missing the
aid.

~~~
srean
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 the otherway... wink wink.

~~~
eklavya
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.

~~~
srean
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.

~~~
eklavya
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.

~~~
srean
> You may think I don't have an argument

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.

------
thrw000
On the one hand Aadhar is so convenient. If I want a phone number or a bank
account, I can simply identify myself with my thumbprints and iris scans and
get it activated immediately without paperwork. This has really made things
easier for people. Using biometrics also reduces fraud when claiming benefits
from the government and maybe makes the process easier as there is again no
paperwork, and it is easy to make claims.

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.

------
ribasushi
An amazing talk from couple weeks ago on the details of Aadhaar and how it was
"implemented" and why this court ruling is super important both in India and
closer to the west:
[https://www.youtube.com/watch?v=iCkhupMROZU](https://www.youtube.com/watch?v=iCkhupMROZU)

------
anuraj
After 70 years of independence - right to privacy is recognised as a
fundamental right by the Supreme Court of India. Individual rights especially
privacy underlie the cornerstone of democracy - Liberty. A small step for
Indian Supreme Court - a giant leap for 1/5th of mankind!

Welcome democracy. Bye bye mobocracy!

------
vkrm
Full text of the judgement is available[0]

Fair warning: its pretty long (547 pages!)

[0][http://supremecourtofindia.nic.in/pdf/LU/ALL%20WP(C)%20No.49...](http://supremecourtofindia.nic.in/pdf/LU/ALL%20WP\(C\)%20No.494%20of%202012%20Right%20to%20Privacy.pdf)

------
joering2
I'm not sure if I read it here, but there was a great example given on how to
answer people with approach of "if you are not doing anything wrong, you have
nothing to hide".

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 :)

------
tim333
Privacy is a tricky thing to make a right in terms of where you draw the line.
Hidden cameras in the bedroom illegal, but a right to a private table at
restaurants wouldn't be practical.

I'm not quite sure where you'd set the boundaries.

------
godzillabrennus
Will this help push more privacy centric companies toward operating out of
India?

~~~
sgift
It didn't really help push them to operate out of Germany, and the German
constitutional court established privacy as a fundamental right in 1983. So
... hopefully, but I wouldn't hold my breath.

------
eqtn
Copy of the judgement

[https://drive.google.com/file/d/0B8zp4Q3w9CfqRTA0YUd4clY1RFE...](https://drive.google.com/file/d/0B8zp4Q3w9CfqRTA0YUd4clY1RFE/view)

------
Shivetya
They also made sexual orientation a right as well. read further into this
ruling, it is just more than privacy at the top level. they went on to make
sure people/prosecutors understand what they really mean

------
arc_of_descent
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 succinctly,
India is a failed country. As mentioned elsewhere in this thread, we
desperately first need to focus on poverty first.

~~~
0x8BADF00D
> 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.

------
vsviridov
But they also prohibit use of strong encryption, so that internet traffic
could be snooped upon...

~~~
nindalf
Are you confusing the Indian govt/courts with some other country?

~~~
vkrm
This is currently a grey area. All ISPs in India have to abide by their
licensing terms with the Department of Telecommunication which restricts
encryption to 40 bit RSA or equivalent. Any higher grade encryption can only
be used with special permission and requires the decryption keys to be
submitted to the DoT.

Whether or not this restriction also applies to end users and non-ISP
organizations hasn't yet been tested in the judicial system AFAIK.

~~~
nindalf
You have a link to that? Either way, I'm not sure how that would be
implemented, other than outright blocking sites that are HTTPS-only. But I
don't think blocking Google, Facebook, Whatsapp and other major websites is
going to fly. I have no doubt that the Indian government would like to read
people's communications and internet history, but that's not possible today.

~~~
vkrm
[https://cis-india.org/internet-governance/blog/how-india-reg...](https://cis-
india.org/internet-governance/blog/how-india-regulates-encryption)

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...](https://www.privateinternetaccess.com/blog/2017/07/indian-isp-wont-let-
users-use-128-bit-256-bit-encryption/)

------
jpelecanos
Would this verdict affect Joint Cipher Bureau's SIGINT ops?

------
ngold
Thank goodness someone did it.

------
modi15
I for one, have no idea what this really means. Can anyone explain why this
ruling is not totally useless ?

~~~
helloindia
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.

~~~
modi15
Biometric is just stronger identity. This can be done in a weaker way using
Passport/PAN card.

Does Right to Privacy mean that the govt. cannot identify individuals ? How
does it then provide differential services ?

~~~
srean
Thats moot unless every significant access point has a means and financial
viability to verify the biometrics.

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.

~~~
helloindia
Right to privacy here mean, govt cannot force citizens to give up their
biometric for simple things like creation of bank accounts. Till now, PAN card
was the only identification needed.

------
srinathrajaram
It says a lot about where we are headed that the Supreme Court had to say
this.

~~~
moh_maya
I think this is needless alarmism. I am glad due process was followed, and
what was previously a grey area has now been made clear.

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...](http://supremecourtofindia.nic.in/pdf/LU/ALL%20WP\(C\)%20No.494%20of%202012%20Right%20to%20Privacy.pdf)

~~~
wtmt
When considering the fact it took close to two years to even constitute a
bench to hear this case, it doesn't really sound alarmist to me. Plus, many
Aadhaar related cases have been pending hearing for years now while the
government blatantly ignored multiple directives from the Supreme Court to
keep it optional and not deprive anyone of any benefit "until the matter is
decided one way or another" (paraphrasing what the court said).

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]

[1]: [https://rethinkaadhaar.in](https://rethinkaadhaar.in)

[2]: [https://scroll.in/topic/38792/identity-
project](https://scroll.in/topic/38792/identity-project)

------
christa30
When the US Pentagon website has been hacked quite recently, some in this
Government think they can make the Aadhaar data completely secure.

~~~
hadrien01
A website being hacked has nothing to do with private information being
leaked. The website is just a facade, it doesn't contain Pentagon secrets.

------
known
Can we expect such Judgement from Chinese regime?

------
AmIFirstToThink
Privacy : You have a right to try to keep things as private as you want. You
should not be prosecuted for merely trying to keep things private.

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.

------
ap46
Finally some good news after the countless train pile-ups.

~~~
skbohra123
Did you miss the yesterday's judgement regarding the Triple Talaq?

------
ahamedirshad123
This is epidemic. SA government is trying this now.

[http://www.planetbiometrics.com/article-
details/i/6211/desc/...](http://www.planetbiometrics.com/article-
details/i/6211/desc/south-africa-to-protect-welfare-beneficiaries-with-
biometric-id/)

[http://www.planetbiometrics.com/article-
details/i/6206/desc/...](http://www.planetbiometrics.com/article-
details/i/6206/desc/zwipe-inks-deal-with-south-african-security-provider/)

[http://www.planetbiometrics.com/article-
details/i/6219/desc/...](http://www.planetbiometrics.com/article-
details/i/6219/desc/south-african-rights-group-demands-end-to-biometric-
cards/)

