29 April, 2020
15 Min Read
Privacy concerns during a pandemic
(By,Suhrith Parthasarathy is an advocate practising at the Madras High Court; Gautam Bhatia is a Delhi-based lawyer; and Apar Gupta is a lawyer and executive director of the Internet Freedom Foundation)
Justice H.R. Khanna, at the height of Indira Gandhi’s Emergency, invoking Justice Brandeis of the U.S. Supreme Court, wrote that “the greatest danger to liberty lies in insidious encroachment by men of zeal (great energy) , well-meaning but lacking in due deference for the rule of law.”
He was concerned, about situations where the government used the excuse of a catastrophe to ignore the rule of law.
In the midst of a grave public health crisis. There is little doubt that the government is best placed to tackle the COVID-19 pandemic by taking extraordinary actions. This is why the efforts of the Central and State governments to maintain a nationwide lockdown, to enforce norms of physical distancing and to restrict movement, have been met with support.
If the government so chooses, fundamental rights can be suspended at will.
Justice Khanna outlined: when faced with crises, governments — acting for all the right reasons — are invariably prone to overreach.
Any temporary measures they impose have a disturbing habit of entrenching themselves into the landscape and creating a ‘new normal’ well after the crisis has passed.
Justice Bandeis,US Supreme court, quote on protection of liberty during situations of catastrophe
“Experience should teach us, “to be most on our guard to protect liberty when the Government’s purposes are beneficent (generous).”
Data and public health
The state’s most significant responses to the pandemic have been through an invasive use of technology, that seeks to utilise people’s personal health data.
The mediums used in implementing the programme overlook important concerns relating to the rights to human dignity and privacy.
Technology has been invoked at three levels.
In creating a list of infected persons, State governments have channelled the Epidemic Diseases Act of 1897.
Problems associated with data collection of COVID-19 patients
These lists have generated substantial second-order harms. As the director of the All India Institute of Medical Science, Dr. Randeep Guleria, pointed out, the stigma attached to the disease has led to an increase in morbidity and mortality rates, since many with COVID-19 or flu-like symptoms have refused to go to hospitals.
The use of geo-fencing and drone technologies is similarly unsanctioned.
Most concerning amongst the measures invoked is the use of contact-tracing applications like Aarogya Setu, that promise to provide users a deep insight into the movements of a COVID-19 carrier.
The importance of civil rights
The Supreme Court’s judgment in K.S. Puttaswamy v. Union of India (2017) is renowned for its incantation, that each of us is guaranteed 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. For these are freedoms that inhere (permanent) in all of us.
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, as the Court held in Puttaswamy, must be tested against the requirements of legality, necessity and the doctrine of proportionality.
This will require government to show us:
A pandemic cannot be a pretext to abnegate the Constitution. Inter arma silent leges, said Cicero: “For among [times of] arms, the laws fall mute”. But our fight against COVID-19 is no war. Even if it were, our Constitution is intended for all times — for times of peace and for times of crises.
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