Tag: Constitutional Law

Right to Silence in the Age of Aadhaar

By: Ishaan Saha

India’s Aadhaar is the world’s largest biometric ID system. Linking biometric data to income tax returns, the scheme is now mandatory for all Indian residents. This article analyzes the Aadhaar scheme in the context of the right to privacy, and in particular, the fundamental right to silence.

There is a distinction in the law on the right to silence, between compelling a person to divulge her password to a digital device, as opposed to compelling a person to use her fingerprint to unlock the same device. In light of this distinction, Aadhaar could effectively render the right against self-incrimination illusory, as the biometric information already stored on the Aadhaar database could easily be used to access an individual’s digital information stored on her phone or computer protected by a fingerprint lock.

Comparing US law on the right to silence and its interface with digital technology with the Indian law on the issue, we see that the US position on the subject is incongruous to the fundamental rights envisaged under the Indian Constitution and also out of pace with the technological advancements of the day. Unless the right to silence comes of age and accommodates the technological challenges posed by biometric ID systems, the lacuna in the law which protects one’s right to refuse to divulge a password confined in her mind, while at the same time excluding from the ambit of protection, the use of one’s fingerprint or other biometric information to access the very same information stored on a hard drive, can be exploited to render the fundamental right to silence — which is often the last bastion of civil society — an abortive ideal.

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The US Left: A Short Introduction

by Victor Wallis
October 2016

Is there a US Left? More specifically, is there a popular movement for socialism in the United States? And what chance does such a movement have for affecting national policy any time soon?

There have been several promising signs. The first was a national survey conducted in May 2012 which found that, among people under 30, there were slightly more who had a positive view of socialism than had a positive view of capitalism [1]. This is quite remarkable considering the endlessly negative evocations of socialism by politicians and the mass media. The second hopeful sign was the election to the Seattle City Council, in December 2013, of Kshama Sawant, representing a group called Socialist Alternative; she received an absolute majority against an incumbent Democrat [2]. Perhaps even more striking, she overcame a massively financed campaign against her to win reelection in 2015. Third, of course, is the popularity of the presidential campaign of “democratic socialist” Senator Bernie Sanders. Although Sanders’ conception of socialism corresponds to 1930s policies of President Franklin D. Roosevelt (a Democrat), his acceptance of the socialist label removes a stigma that had long been attached to it as a result of the ideological repression that has plagued the US Left through much of its history [3].

Underlying this new openness to socialism is a broader public awareness, especially since the economic collapse of 2008, that capitalism is incapable of satisfying the basic needs of the majority. This awareness is indirect but unambiguous. It is manifested in overwhelmingly hostile attitudes toward politicians and, more importantly, toward big corporations. These attitudes became sharply visible during the Occupy movement of 2011. More recent expressions have included nationwide demonstrations and strikes by low-wage workers against fast-food companies and against the mega-store Wal-Mart.

Still, there is an enormous gap between these developments and the emergence of a solid and coherent national political force with a capacity to grow. To understand this gap – and why it has been so persistent – we must return to a question that has been posed about the United States for more than a century: Why is the US so difficult for the Left? Deep structural factors are at work, and we need to take these into account before returning to the question of what can now be done.

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Scalia and the Rule of Law

Howl of the Day: Feb 22, 2016

“The law,” wrote Aristotle in his Politics, “is reason unaffected by desire”.

This view is complicated by Aristotle himself, particularly in his treatment of legislators, those who make the law, and foundings, when laws are born. But despite that, the view so expressed does not lose much of its basic persuasive impact, nor any of its practical importance. The difference between any regime and its degenerate form is often to be found in whether or not the law is regarded therein as an expression of passionless reason, and respected accordingly.

Perhaps no recent justice of the American Supreme Court was as concerned with this idea as the late Antonin Scalia. There have been and will, of course, continue to be questions about whether Scalia understood the issue sufficiently well, and whether he bore out his own view of the matter consistently in his actual judgements, and so on. But there can be little dispute that he regarded the issue as a central one and that he compelled others, friends and foes, to do the same.

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The United States Supreme Court and Same-Sex Marriages: Did The Court Miss An Opportunity For Something Greater?

By: Amar Khoday

Let’s give credit where credit is due. The United States Supreme Court did a tremendous thing for marriage equality in Obergefell v. Hodges.[1] It struck down state laws prohibiting same-sex marriage. In the words of United States federal appellate judge and legal scholar Richard A. Posner: “Prohibiting gay marriage is discrimination.”[2] The decision culminates years of litigation on the issue.

While I am delighted by the outcome of the decision, I am nevertheless going to be a bit of a downer here. Obergefell didn’t go far enough. How so?

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