Given the grave public health crisis of COVID-19, there is little doubt that the government is best placed to tackle it.
However, there is a concern that the government’s technology solutions in fighting this fall short of meeting the minimum legal requirements.
What are the contentious measures?
The state’s most significant responses to the pandemic have been based on an invasive use of technology to utilise people’s personal health data.
Broadly, technology has been invoked at three levels:
in creating a list of persons suspected to be infected with COVID-19
in deploying geo-fencing and drone imagery to monitor compliance by quarantined individuals
through the use of contact-tracing smartphone applications, such as AarogyaSetu
The measures deployed sound reasonable.
But the mediums for implementation overlook important concerns relating to the rights to human dignity and privacy.
What are the concerns?
List of infected persons - In creating a list of infected persons, State governments have channelled the Epidemic Diseases Act of 1897.
But this law scarcely accords the state the power to publicise this information.
These lists have also generated substantial second-order harms as the stigma attached has led to an increase in morbidity and mortality rates.
This is because many with COVID-19 or flu-like symptoms have refused to go to hospitals.
Geo-fencing and drone imagery - The use of geo-fencing and drone technologies is unsanctioned.
Cell-phone based surveillance might be possible under the Telegraph Act of 1885.
But until now, the 'orders authorising surveillance' have not been published.
Moreover, the modified surveillance drones used are equipped with -
the ability to conduct thermal imaging
night-time reconnaissance
the ability to integrate facial recognition into existing databases such as Aadhaar (a feature claimed by some private vendors)
The drones deployed also do not appear to possess any visible registration/licensing contrary to the Aircraft Act of 1934 regulations.
Indeed, many of the models deployed are simply not permitted for use in India.
Contact-tracing applications - The Union government has made AarogyaSetu, its contact-tracing application, its signal response to the pandemic.
Such applications promise to provide users a deep insight into the movements of a COVID-19 carrier.
The purported aim here is to ensure that a person who comes into contact with a carrier can quarantine herself.
Notably, the efficacy of such applications have been questioned by early adopters, such as Singapore.
Thus far, details of the application’s technical architecture and its source code have not been made public.
The programme also shares the concerns with the Aadhaar project in that its institution is not backed by legislation.
Like Aadhaar it increasingly seems that the application will be used as an object of coercion.
There have already been reports of employees of both private and public institutions being compelled to download the application.
Also, much like Aadhaar, AarogyaSetu is framed as a necessary technological invasion into personal privacy, in a bid to achieve a larger social purpose.
But without a statutory framework, and in the absence of a data protection law, the application’s reach is boundless.
What are the conflicting arguments in this regard?
The pandemic is becoming an existential threat and so the paramount need to save lives is said to take precedence over all other interests.
This supports the idea that if the government chooses, fundamental rights can be suspended at will.
The judgement given by Justice H.R. Khanna at the height of Indira Gandhi’s Emergency holds much relevance in this context.
Justice Khanna was not speaking about the crushing of freedom at the point of a weapon.
He was concerned, rather, about situations where the government used the excuse of a catastrophe to ignore the rule of law.
Why is overreach dangerous?
When faced with crises, governments, acting for all the right reasons, are invariably prone to overreach.
But, any temporary measures they impose have a disturbing habit of entrenching themselves into the existing system.
Over the time, this may get to be the ‘new normal’ well after the crisis has passed.
Paying close attention to civil rights, therefore, becomes critical as rights are particularly vulnerable in a crisis situation.
What caution should the government take?
The Supreme Court’s judgment in K.S. Puttaswamy v. Union of India (2017) spelt out on the guarantee of a fundamental right to privacy.
But the Court also recognised that the Constitution is not the sole repository of this right, or indeed of the right to personal liberty.
To be sure, the right to privacy is not absolute.
There exist circumstances in which the right can be legitimately curtailed.
However, any such restriction must be tested against the requirements of legality, necessity and the doctrine of proportionality.
This will require the government to show that -
the restriction is sanctioned by legislation
the restriction made is in pursuance of a legitimate state aim
there exists a rational relationship between the purpose and the restriction made
the State has chosen the “least restrictive” measure available to achieve its objective
In the present case, the government’s technological solutions are unfounded in legislation.
Also, there is little to suggest that they represent the least restrictive measures available.
A pandemic cannot thus be a pretext to renounce the Constitution.
