by Suyash Shrivastava and Nishant Tiwari 17 July 2020
As we are dealing with a global pandemic, governments around the world are increasingly relying on information technology to advance their fight against the virus. From contact tracing to self-quarantining, smartphone apps have begun to determine the course of public health actions. The current controversies related to the collection and processing of health data to combat the coronavirus take this issue to a different level. It represents a tension between two fundamental rights, that is, the right to life and the right to privacy.
The established discourse on rights says that the enjoyment of your rights ends when it affects another person’s ability to enjoy theirs. The idea is to guarantee the enjoyment of the rights by all, in equal measure. However, we are facing an unprecedented situation today, as only with its presence can it threaten the well-being of another human being. The Constitution guarantees the right to life and liberty under Article 21, but never before these fundamental rights have been treated as antithetical to each other. Today, these rights are antithetical to each other, and to preserve life in its real, actual, and most basic sense, we need to give up few freedoms enshrined under the Constitution of India. The more freedom we surrender, the greater is the chances of preserving the right to life.
- COVID-19 Testing Itself in the Constitutional Waters-
With the pandemic spreading like a forest fire, the state’s increasing attempt to flatten the curve appears to be ineffective. This is probably the first instance in the history of India, where infectious disease is being tested in constitutional waters. The Constitution of India in its Part-III guarantees Fundamental Rights to the citizens. Under Part-III of the constitution, Article 21 deals with the right to life and liberty, which cannot be abrogated at any cost. The current situation poses a new test every day for the executive and the judiciary.
- For the executive, it is a test to enforce the law of the land and guarantee the protection of the Fundamental Rights provided under the Constitution of India.
- For the judiciary, it is the test to defend those rights that have been denied by the State. In an attempt to defend and protect the constitutional fabric, the executive and the judiciary must constantly re-evaluate the state of affairs.
In the case of KS Puttaswamy v. Union of India, it was held that the right to privacy is a fundamental right under Article 21 of the Constitution of India, 1950. Since the imposition of the lockdown, the right has been massively undermined or ignored by the State. The new trend appears to be a breach of personal information in the Covid-19 tracking outfit. There have been several cases in which state governments have released personal data of people who have been quarantined. These details include names, passport numbers, residential addresses, and telephone numbers. This disclosure of personal data has become a privacy problem and has been declared as a serious violation of the legitimate expectation of privacy with the launch of the Aarogya Setu app, which tracks movement and health details among other personal data of the users.
- Right to Privacy and Aarogya Setu App-
The government of India has launched a mobile contact tracing application called Aarogya Setu to help people assess their risk of getting infected with the novel coronavirus and alert authorities about the same if they come near to an infected person. Once the app is downloaded, it requests continuous Bluetooth access, GPS location and various data. Further, the data which has been collected by the Aarogya Setu app is broadly classified into four categories:
- Demographic data- It comprises information such as name, mobile number, age, gender, profession and travel history.
- Contact data- It means any other person, with whom a certain person has approached, including the duration of the contact, the approximate distance between the people and the geographical location in which the contact occurred.
iii. Self-assessment data- It is about the responses provided by that individual to the self-assessment test administered within the app.
- Location data- It includes the geographical position of an individual in latitude and longitude coordinates.
The app has alerted around lakhs of users in the country about a possible risk of infection due to proximity to infected persons and helped generate information about the potential hotspots in the country. A concern that gained momentum after a French hacker and cybersecurity expert who goes by the moniker Elliot Alderson took to Twitter to raise alarm over alleged security issues in the app. The threats are the fact that the government has no clear legislation on privacy or plans to set up an agency to monitor data protection.
The initial, as well as the upcoming set of violations of Fundamental Rights, have seriously questioned the constitutional fabric. While on paper, the Constitution always guaranteed a set of rights, but in reality, the state suffers from an implementation failure. Interestingly, these fault lines have often been highlighted by experts long before the Covid-19 outbreak, but the state has overlooked them time and time again. There is an urgent need for the State and the judiciary to re-evaluate and correct these implementation gaps and also, create a balance between right to life and right to privacy.
The Supreme Court in the KS Puttaswamy v. Union of India case held that the right to privacy of an individual can only be subject to reasonable restrictions when the restrictions are enforced through a law that pursues a legitimate state aim and are proportionate. The disclosure of patient names for the purpose of tracing contacts and stopping the spread in such exceptional circumstances is a proportional and necessary limitation of the person’s right to privacy.
The constitutional scrutiny of any government action related to Covid-19 must be contextualized within the extraordinary circumstances that inform such action. Given the existential threat to the entire human race, it is imperative that the Union and state governments take all possible measures to map transmission, identify potential carriers, and prevent community transmission. We have seen the result of uncontrolled community transmission in countries like Italy, Spain, and the United States, despite their admittedly advanced health systems. Disclosure of the patient’s name was enforced by the state government through a law that pursues a legitimate state aim.
The reasonable restriction of a person’s right to privacy must be balanced with the right to life of an entire population under the well-established doctrine of “reasonable restriction” enshrined in Article 21 of the Constitution of India, 1950. Protecting the right to life and livelihoods of millions required that some people’s right to privacy be subject to reasonable restrictions, as was resorted to in this case by the state government. The disclosure of the details of a single person among several positive cases is not discriminatory since it was carried out under an exception within the framework of the law. Said exception satisfies the “reasonable classification” test and has a rational connection with the objective of protecting public health and safety. Above all, let us not forget that the law is for many and not for a few. A just society is one in which the right of the individual is an instrument for the greater collective good, and not antithetical.
Adopting effective responses to the current pandemic while defending the right to privacy is the challenging task that governments must take on in the wake of the current global health crisis. Data privacy is an integral part of any democratic country. It has always been sensitive, as it is associated with a citizen’s fundamental right to privacy. With COVID-19, thousands of people are being examined and tested at airports and hospitals for the chances of new coronavirus cases, and information, including on medical conditions and travel itineraries, is being collected by authorities, including private employers and through the Aarogya Setu app. Achieving a balance between conflicting instances like this has never been an easy task in modern societies. Certainly, data is likely to play an important role in containing and reducing the spread of the virus, but while the collection of certain data may be necessary for the performance of state functions; but the collection of not all data can be justified for reasons of public interest.
Furthermore, although the collection of data for the stated purpose finds acceptance, the retention of such collected data beyond the stated period of time for the purpose would be unacceptable. Moreover, although the processing of such data for future analysis and discrimination by employers/government would be characterized as a crime, an examination of patient-related patterns, analysis, and studies by research groups/hospitals /pharmaceuticals, medical devices, and health care companies of such data is not directly available. Therefore, in a fight between the right to privacy and the public interest, it is required to draw a balanced line. Also, the same can be adopted by the corporate houses and governments, while dealing with the data of Indian citizens and other people within Indian territory.