Right to Privacy and Rule of Law in India

The term “Privacy” is used frequently in ordinary language as well as in philosophical, political and legal discussions, yet there is no single definition or analysis or meaning of the term that is comprehensive to give the full idea of privacy. The concept of privacy has broad historical roots in sociological and anthropological discussions about how extensively it is valued and preserved in various cultures. One of the most cherished human rights is right to privacy. It is a fundamental human right, enshrined in numerous international human rights instruments. It is central to the protection of human dignity and forms the basis of any democratic society. In general parlance privacy is the ability of an individual or group to seclude them or information about themselves and thereby reveal them selectively. Privacy is sometimes related to anonymity, the wish to remain unnoticed or unidentified in the public realm. It is right to be let alone. It’s a negative right imposing negative duty on the rest of the world. In the context of India the position of law on right to privacy was clarified by Supreme Court in Justice K Puttaswamy v. Union of India, here court held that privacy is a constitutionally protected right which emerges, primarily, from Article 21 of the Constitution. However, this is not an absolute right but interference must meet the three fold requirement of (i) Legality; (ii) the need for a legitimate aim and (iii) proportionality. Mean to say that right to privacy shall be asserted and enjoyed in accordance with rule of law. We can define the society of law, or the rule of law, as an arrangement in which the individual is able to plan his own life by adhering to rules by which he will avoid all penalties enforced by law. Such a definition entails several assumptions. It assumes generality that rules lay down general standards of conduct for all citizens equally. It assumes that the rules will be stated with sufficient clarity, that there is little or no question what forms of behavior are permitted or prohibited by the rule. It assumes that the rules are coherent, that is, that there is an established hierarchy to determine which rules govern in cases of conflict and that there are not conflicts in the rules governing the same situations. It assumes that the rules are backed by authoritative enforcement, that there is governmental structure responsible for determining cases of conflict under the rules. In the present paper the author intends to explain the relation between Right to Privacy and Rule of Law. Further effort is made to explain how realization of right to privacy in India is difficult in the absence of certain basic aspects of rule of law in relation to right to privacy. Also it is emphsised that absence of certain aspects of rule of law vis-à-vis right to privacy strikes at constitutionalism.

On the Universal Power of Socioeconomic Rights: A Comparison Between Thomas Pogge and Rainer Forst

Introduction. This article investigates the universal power of socioeconomic rights assessing their theoretical conceptualization and practical implication. Methods. Taking theoretical and empirical research into account – at the level of public ethics and political theory – the article carries out a comparative analysis of the elements of global economic justice theory, moral universalism and institutional understanding of human rights of Thomas Pogge and the critical theory of political and social justice and the moral constructivist conception of human rights of Rainer Forst. Analysis. On the one hand, Pogge’s cosmopolitan approach underlines serious noncompliance of socioeconomic rights at the global level because of the unjust distribution of rights and duties enforced by the current global institutional order. In this vein, the protection of socioeconomic rights is conceived as a (moral) negative duty not to deprive people of secure access to a basic human rights object, and socioeconomic rights, by imposing upon them unjust coercive social institutions. On the other hand, Forst’s perspective maintains that each right needs to be constructed on the very basic moral right to reciprocal and general justification which is conceived as the most universal and basic claim of every human being. Results. Drawing on the above-mentioned outlooks on socioeconomic rights, the universal power of socioeconomic rights is assessed in light of the satisfaction of universal basic needs, whose object is also the object of socioeconomic rights – a ‘conditio sine qua non’ for a worthwhile life – and the justification of the assigned duties at the global level.

Testing the Motivational Strength of Positive and Negative Duty Arguments Regarding Global Poverty

Two main types of philosophical arguments have been given in support of the claim that the citizens of affluent societies have stringent moral duties to aid the global poor: “positive duty” arguments based on the notion of beneficence and “negative duty” arguments based on noninterference. Peter Singer’s positive duty argument (Singer Philosophy and Public Affairs 1:229–243, Singer 1972) and Thomas Pogge’s negative duty argument (Pogge 2002) are among the most prominent examples. Philosophers have made speculative claims about the relative effectiveness of these arguments in promoting attitudes and behaviors that could lead to the alleviation of poverty. In this article we present the results of two empirical studies that evaluate these claims, and suggest that both arguments have a modest effect on people’s attitudes and behaviors regarding global poverty. In a replication of the second study, the negative duty argument, in particular, had a statistically significant effect on donations. We discuss the theoretical and practical significance of these results and suggest directions for further research on the role that philosophical arguments can play in engendering concern and action on pressing moral problems.

Autonomy and Free Speech

This chapter evaluates the relationship between autonomy and freedom of speech, examining a variety of autonomy-based justifications for the importance of speech and especially of freedom of speech. The differences between these justifications relate not only to the different conceptions of autonomy that underpin them, but also to their different responses to the problem of competing autonomy interests. It is plausible to think that the state should respect, protect, and promote the autonomy of everyone—speakers, listeners, thinkers, bystanders, and members of the public at large. Enhancing the autonomy of some might, however, require restricting the speech of others. The liberty-based conceptions of autonomy prioritize the interests of speakers and listeners and hold that the primary obligation of the state is the negative duty not to interfere with the autonomy of individual speakers and listeners. By contrast, the relational conceptions of autonomy hold that the negative liberty interests of individual speakers and hearers should be balanced against the positive duties of the state to promote the social conditions necessary for the development and exercise of autonomy by all citizens.

Thomas Pogge’s Conception of Taking the Global Institutional Order as the Object of Justice Assessments

Might our reasoning about social justice at the domestic level—for instance, with regard to the kind of objects that our justice assessments are immediately concerned with and the content of principles employed—properly diverge from its counterpart at the global level? This is the question around which much of the current global justice debate revolves. This chapter is devoted to examining and arguing that the answers provided by Thomas Pogge for the most part retain their plausibility despite the barrage of criticism they have provoked. While Pogge is particularly renowned for his contention that existing world poverty constitutes an injustice that implicates ordinary citizens of affluent societies in negative duty violations, this chapter will not be directly weighing in on this debate. Rather, it seeks to examine a fundamental commitment in Pogge’s justice theorizing: if we are to take the basic institutional scheme of a domestic society as the primary subject of justice in virtue of its profound and pervasive effects, then consistency requires us to subject the global institutional scheme to the same type of justice analysis, and to devise a corresponding set of principles governing its design. Through clarifying the meaning and implications of this proposition, this chapter hopes to bring out a more lucid and unified reading of Pogge’s institutional approach to justice theorizing, one that is both appealing and remains viable in the absence of a world government.

Re-Assessment of “Claw-Back” Clauses in the Enforcement of Human and Peoples’ Rights in Africa

One of the continuing problems, which had faced the African Charter, is many of its substantive provisions that are raven with qualifications without reasonable justification. These rights guaranteed under the Charter are subject to “claw-back” clauses that are introduced by governments and public authorities thereby undermining their citizen‟s basic constitutional rights of securing fundamental freedoms. They are those rights that impose negative duty on the state and are meant to promote the values of pluralism, equality and human dignity, which should be enjoyed free from state interference. It is in the interference of these rights that commentators have frequently criticized the African Charter for rendering its protective mandate meaningless and unenforceable. With hindsight, it is evident that the foregoing critique levelled against the “claw-back” clauses under Charter is justified, as they have a chilling effect on the exercise of human and peoples‟ rights on the African continent. Such condition has produced intense academic discussion on the interpretation and implications of the rights and freedoms enshrined in the Charter. None the less, the scope and the significance of the legal measures adopted by the African Commission have minimized the impact of the clauses affected considerably. Accordingly, a strong principle of interpretation adopted by the Commission has contributed to shaping the Charter‟s legal structure in harmony with international human rights law standards.

Declaring the Global Economy a Status Confessionis?

This article revisits theologian Ulrich Duchrow’s three-decade-old use of the Protestant notion of status confessionis to denounce the capitalist global economy. Scholars quickly dismissed Duchrow’s argument; however, philosopher Thomas Pogge has developed a remarkable “negative duty”—based critique of the current global economic order that might help revitalize Duchrow’s position. The article argues that sound reasons exist for the churches to declare the contemporary world economy a—provisionally termed—status confessionis minor. After explaining the inadequacy of Duchrow’s original position and summarizing Pogge’s account, the article develops a twofold argument. First, Pogge’s in-depth inquiry into the world economy gives Duchrow’s call for a status confessionis a strong yet narrowing economic foundation. Second, to declare the world economy a status confessionis minor is theological-ethically justifiable if the limited though indispensable “prophetic” significance of doing so is acknowledged. Thus, Duchrow’s approach is justified, but only partially.

Pogge, poverty, and war

According to Thomas Pogge, rich people do not simply violate a positive duty of assistance to help the global poor; rather, they violate a negative duty not to harm them. They do so by imposing an unjust global economic structure on poor people. Assuming that these claims are correct, it follows that, ceteris paribus, wars waged by the poor against the rich to resist this imposition are morally equivalent to wars waged in self-defense against military aggression. Hence, if self-defense against military aggression is just, then, ceteris paribus, so are defensive wars against the imposition of economic injustice. While I do not think Pogge’s analysis of the causes of global poverty is correct, I defend these inferences against various challenges.