Ms. Shailja Rawal
“The worst happens when you are least expecting it”
While the world is busy dealing with the COVID – 19 pandemic, is it true that Indian Government is inventing ways to curb the fundamental rights of its citizens? One of the recent developments in this regard is launch of the mobile application Aarogya Setu which helps citizens ascertain their risks of contracting the virus. With more than 80 million people having downloaded the app, the question as to the diminishing status of fundamental rights becomes even more pertinent. One must be wondering that how the choice of installing a mere mobile application can infringe the fundamental rights of a citizen, this article serves the answer to it and also suggests the way forward.
Aarogya Setu app: An Unconstitutional Barter system of Fundamental Rights
The scope of Article 21 has been broadened in the recent times to give depth to the “inner” aspects of the right to life. Right to make free choice is one of them. Ideally speaking, it’s the personal discretion of the individual whether to install a given app or not. But unfortunately, this is not true for Aarogya Setu. When viewed in the light of externalities it can be inferred that this “free choice” is a mere Hobson’s choice. From imposing an obligation on all public sector employees and courts granting bail on the condition of installing this app to some states even criminalizing citizens for not downloading the app makes one question the intrinsic meaning of the word ‘free choice’. If a parallel is drawn with the Aadhar case, one realizes the metamorphosis of the term ‘voluntary’ to ‘voluntary cum mandatory’ and transition of today’s option which may end up becoming tomorrow’s compulsion. Doubts arise regarding the constitutionality of the app not only on the basis of Article 21 but also Article 19(1) which entails within itself Right to free movement.
This can be observed from the fact that the current government is planning to implement this app to generate e-passes. The app assigns 3 different colours for the citizens based on their vulnerability to catch corona virus. This colour in turn would determine the movement of its citizens and subject them to different levels of restrictions thereof. In the status quo, already some restrictions have been imposed. For example the app is now mandatory to travel across state borders and only ‘safe’ or ‘low risk’ status employees are now permitted to go to office, rest have been asked to stay at homes and undergo self quarantine. Unfortunately there are indications of it being used to avail basic services like getting ration, medicines etc. This situation makes one fear that India should not become the next China where fundamental rights and civil liberties of citizens have been conveniently pushed to a backseat.
Although this pandemic has proven to be bad for all but unfortunately it has become worse for some as they have been forced to weigh their fundamental rights and treat them as being mutually exclusive to each other. While government stands silent regarding the infringement of right to choice or right to movement, further the questions arise regarding the rights of under privileged sector of the society who do not even have a smart phone to install the given app, thereby infringing their right to equality under Article 14. These people constitute around 24% of the entire population and unfortunately their right to movement is also currently looming in darkness.
Testing the app against the cornerstone of Personal Data Protection Bill, 2019
Although all of these concerns can be mitigated on the grounds of Section 15, Data protection Bill 2019 which talks about public health emergency yet the main problem arises with the clause of the app which says that personal information of the user can be maintained even after its uninstallation. Even though there is a provision of the data being removed after 30 day time period if the person is found to be healthy but this comes in combination with some exceptions which can be invoked on government’s discretion. Thus, this creates a suspicion on the grounds of data being collected through the user temporarily during the pandemic may continue to exist until perpetuity. The suspicion further aggravates due to lack of any public audit which can assure the citizen that his/her information has been deleted or not. The situation gets even worse since India does not have a well-developed law regarding data protection, this increases the possibility of government evading the sanctions, if imposed any. Even though such apps are released by other countries also but there lies a huge difference in the approach followed between the two. Governments of other jurisdictions even in these challenging times are comparatively following a privacy friendly approach whereas India is constantly compelling its citizens to pick and choose any one fundamental right out of the two i.e. privacy or safety.
- Singapore monitors people’s interactions through Bluetooth beacons, MIT does it through GPS, however India uses both.
- Other apps just collect one data point which is subsequently replaced with a scrubbed device identifier. India’s Aarogya Setu collects multiple data points for personal and sensitive personal information which increases privacy risks.
Weighing safety of all against privacy of few
Although these concerns prove to be real time issues but given these times of pandemic do we really have the option of discarding the one and only alternative of ensuring safety. Even Right to privacy is not an absolute right and can be subjected to reasonable restrictions under Article 19(2) and sometimes even overridden by competing state and individual interests. It has been conceded that health concerns can trump privacy considerations. The Supreme Court in Justice K. S. Puttaswamy (Retd) v. Union of India laid down the proportionality test according to which one of the components states that there should be a balance between infringement of rights and overall public benefit. Ideally speaking, fundamental rights should not be seen as trade off commodities out of which the best possible option has to be picked up and chosen. But, unfortunately the ground reality in these challenging times is a little different and therefore answering in hypotheticals is not a feasible solution. The present unprecedented situation is a clash between the individual right to privacy and the acts done in good faith during a crisis to ensure safety. The government has resorted to a utilitarian analysis where benefits of all seem to prevail over costs imposed on the few. Certain judgments such as Smt. Lucy R. D’Souza and Etc. v. State of Goa and Others and Mr X v. Hospital Z held that in circumstances where public health is at stake, individual rights and liberties come secondary. If SARS were to teach us anything today, it would be that in the face of an evolving threat, even government has no choice but to weigh personal liberty against potential grave threats. Due to lack of any alternative mechanism in the present times, probably breaching privacy is the only option available even though it might not be the best possible one. Similarly, in yet another smallpox epidemic, case of Jacobson v Massachusetts held that freedom of individual must be subordinated to common welfare.
It is a well-known fact that rash and negligent driving causes around 20,000 deaths each year but what is the way out. Now, all of us cannot sit at homes or abandon driving altogether because of the huge number of deaths caused. So, government came up with the concept of licensing plates which have to be displayed on the front and back of the car so that people get to know who is driving. Technically speaking, this too is a breach of privacy but we as a society have adopted it to maintain a healthy balance between individual rights and community benefits. These are desperate times and the state cannot be entirely blamed for resorting to extreme measures, but attempts have to be made to ensure individual safeguard of rights upholding the ideals of Data Protection Bill, 2019, lest rights forgone today as an exception may become the norm tomorrow. Practically speaking, Although India cannot all of a sudden imitate the app technology of Singapore which is comparatively more user friendly yet certain measures can be adopted like scrutinizing the app through public audit, removing the possibility of perpetual loss of personal information to the government etc. to ensure a healthy balance between community welfare and individual concerns. While one cannot expect the same level of privacy as in times of peace, but we have to ensure that laws are not altogether thrown to the wind and certain time-bound suggestions are put in place. Need of the hour for the government is to engage with the public regarding the concerns on the app which will mitigate their grievances and build in them a sense of confidence about an Orwellian state not being the future of India. There is a good possibility that even then, a cent percent accurate outcome will not be brought into picture but the government’s silence which is now being construed as opacity will be removed to a great extent. A country cannot run solely on the burden of either citizens or government, thus a combination of sacrifices made from both ends will do wonders in ensuring a healthy balance and sailing through this pandemic.
Ms. Shailja Rawal is a 2nd Year, B.A. LL.B (Hons.) student at National Law School of India University, Bangalore.