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This article is written by Abhijeet Kashyap from Law College Dehradun.

Introduction

Spread of CoronaVirus is the most serious and deadliest problem the whole world is facing today. COVID-19 disease, which is caused by the attack of coronavirus, is not easy to cure. Thus the number of COVID-19 cases continues to grow rapidly- with over 8,00,000 people being infected worldwide as of now. With no particular vaccine for the disease, the situation is still alarming for the upcoming months. COVID-19 is causing serious health, social and economic health issues all over the world. The states are introducing many policies in this situation to prevent the spread of the pandemic.

With the continued growth of pandemic, policymakers all around the world are working to suppress it. Many precautions are taken by states to combat the diseases and ensure public health, but some of these measures and precautions seem to be not in accordance with personal privacy rights. Public display of patient’s health information, the publication of quarantine lists, Introduction of Cyber applications(which asks for personal information) are some of the precautionary steps by the state which attack the personal privacy of the individual. In this paper, we will discuss the laws which allow the state to issue such orders and Right to Privacy in the Constitution of India. This study further consolidates if these measures taken by the government are in compliance with privacy rights or not?

As India considers response strategies to the novel SARS-COV 2 disease, also known as COVID-19, the country is encountering many seemingly traps apart from healthcare problems. Country is in lockdown with all industries and economical, educational institutions closed. This lockdown has precipitated many humanitarian and economic challenges like a mass exodus of immigrants from urban to rural areas, disruptions in food supply chains and slowing down of the economy etc. In this situation, decision-makers are not hesitating from taking any radical or impulsive decision. Every issued order as of now is only focused on preventive measures against the pandemic. Right now the Sole purpose of government is to stop the community transmission of coronavirus. Thus many decisions of government are avoiding the fundamental rights of the public. Right to privacy is one of them. Be it a public display of health history, tracing and tracking with help of technology or curbing the right to use their own social media account freely. All this may seem less important right now but it is necessary to remind the government that these are the basic rights of citizens and should not be infringed without any proper guidelines. 

Infringement of Right to privacy

Many states published the list of people under quarantine. These people had been placed under the quarantine list as patients or as suspected carriers. This list consisted of important and private information of these people like their name, address, profession and phone number. According to State’s argument, it was necessary to display this list publicly for public health so that people can be aware and avoid the contacts with these people. Thus several states like Punjab, Odisha, Karnataka and Mumbai publicly displayed these lists on their website. In some cases, these reports were leaked and could be easily found on social media platforms like WhatsApp, Facebook or Telegram. These lists were prepared by the Ministry of Health and Family Welfare. The main source of this list were self-declaration forms which were filled by the national and international passengers entering India or their state.The Ministry mandated for all the passengers to fill the self-declaration forms and submit these forms to health officials at the time of health screening at the points of entry. This was mandated for further entry. All this Data helped in preparing quarantine lists. 

But when lists went public, it became inconvenient for those people who had their name on the quarantine lists. In a very short span of time, their personal information became public on social media. After which these people faced several harassment, ostracism in the society, stigma and anonymous hate calls. This process of Data Collection started in March when people were not fully aware of the upcoming deadly situation of the corona. The passengers clearly did not give a hint to passengers of the reason for their information collection. Public did not know that this information could be used publicly further. The Ministry of Health and Family Welfare did not give any guidelines to passengers about the purpose of the list while collecting their data. It was clearly very damaging, responsible and illegal responses from the national ministry and state authorities. They disclosed the private details of persons like their phone number, health status. In some states like Delhi, authorities also marked the home in which any patient lived or someone quarantined himself. It became a threat like social coercion. These people faced many problems in society. It created a situation like the time when people who are disclosed to have HIV virus or tuberculosis face anger, problems, and hatred from society.

In this situation, if there was an infringement of privacy or not, In the case of KS Puttaswamy vs Union of India the supreme court held that the Right to privacy is a fundamental right given by the Indian constitution. It comes under the ambit of article 21 of the Indian constitution which deals with the right to life. In this case, justice puttaswamy, a retired judge of Karnataka high court had challenged the legality of aadhar but the court declared that aadhaar act of 2016 did not violate the right to privacy. The plea was filed on the basis that aadhar registration required personal details i.e. name, address, phone number of people which is an infringement of the right to privacy. But the court declined the plea with the argument that the right to privacy is not an absolute right. This right can be restricted by the state in some situations. But these restrictions should be legal, necessary, proportional and should consider the safeguards of rights.

Under legality, there must be some provisions of law to support the restriction. The restriction must have some purpose and it must be necessary for national interest, public health, prevention of crime etc. such extraordinary circumstances. This restriction should also be abuse-free, fair, proportionate and according to law. Thus states can make provisions in emergency situations against privacy rights but these restrictions should not be illegitimate or limitless. Every restriction or, measures derived by policymakers for an emergency, should be in compliance with human rights and constitutional standards.

If we compare the situation of quarantine lists with these conditions of legality and other comparative measures, we can say it can be a necessary legal and institutional approach to legitimise any restriction in people’s privacy because it is important for the state to trace, detect and contain the spread of COVID 19. This is the situation in the present time when health should be prioritized over anything but here also comes a question of the situation after the corona pandemic ends. There is not any rule or provision introduced by the government yet that it will protect the data shared during quarantine. The data which is publicly displayed will still be on social media platforms, it will cause inconvenience to listed people and this data can also be wrongly used by hackers in future. Government is also sharing this data with some private institutions for rapid checkup and treatment, but will these private companies be controlled by the government after COVID- 19?

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Cyber security and surveillance 

While the publication of quarantined lists and disclosure of personal information through them was the first step which questions the right to privacy, with the increasing problems, implementation of technology for tracing people became even more sophisticated. In the pandemic time, every state is struggling with human and physical resources. Thus states are inclining towards modern technologies. In their efforts of saving lives, states are using digital technologies and devices to tackle the pandemic but this should also be in line with human rights. Technology is playing a very important role in fighting pandemic.

States are gathering data of individuals and using this in spreading public health awareness, increasing access to health care etc. however, it also questions the legality of this data collection by state. Because digital surveillance by the state, obtaining personal information like number, location etc. threatens the privacy and integrity of individuals. It can also impose harm on marginalized or sick people. They could be discriminated against on the ground of this personal data. This is also very important that surveillance power should not be used excessively. It should be used only in emergency situations with some conditions. All the adopted surveillance measures should be lawful, necessary and justiciable. Process of digital surveillance should be transparent sp there can be no discrimination and these measures can be also modified in case of any injustice monitoring power of the state should be limited to only a specific time being. After that, it should be the government ‘s responsibility to delete all our data from its platform and also to make sure that this will not be used by anyone.

Privacy concerns with ‘Aarogya Setu’ App

The Government of India recently launched a training application for COVID 19 and named it AAROGYA SETU which means “ A Bridge of health”. This is inspired by Singapore’s tracing system TraceTogether and America’s tracing device SafePaths. All these devices are developed to trace corona patients easily through Bluetooth or location tracking. Aarogya Setu is developed by Niti Aayog, governmental think tank of India, and Ministry of Family and Health Welfare. The primary purpose of the application is to make people aware if they are at risk of contacting the coronavirus. but there are rumours that actually the purpose of this app is to locate those who do not follow guidelines of lockdown.

Government is tracking people’s location through drones and monitoring their activities. Though the primary developer of aarogya setu app is National Informatics Centre (NIC) which is under the ministry of health and family welfare, there is no exact knowledge that if any private entity is involved in the development of an application or not. If there is any private developer involved then the risk of privacy infringement is higher. Application asks for personal details of the user like name, age, gender, profession and history of the journey. It is also necessary to share location and Bluetooth for using the application.

However, in spite of the risk, it is not worthwhile to deny the application and question the government’s decision to monitor data for lockdown requirements. But there is one argument which can not be avoided that this application can be used in smartphones only. In a country like India, it is not a very useful decision because only ten to twenty percent of people use smartphones here. So when the government says that the sole purpose of the app is to protect most of the people from COVID, it seems very vague. It gives doubt that there is surely some agenda behind the application. There is also no clarity on the part that the application will store the recorded data until when. Thus there is an urgent need on part of the government to clarify all doubts and make the public aware of the privacy framework of the application so that maximum people can use it without hesitation and fear of losing their privacy.

Conclusion

We can not deny that it is not avoidable to use technology against this pandemic. It is essential for public health to use cyber devices for tracing and testing. At one instance it can be felt that public health should be prioritized at any cost over personal freedom but this should not be the case in the long term. Because personal freedom or liberty is the very most fabric of the democratic state. Thus even at the time of the pandemic or epidemic, if the state interferes in personal privacy, it should be the duty of the state to follow safeguards because history is filled up with examples when interference in privacy leads to long term complications. US PATRIOT ACT of post 9/11 and AADHAR VERIFICATION are some examples in this context. Any public crisis should not be used as an excuse for the state to control the rights of its citizens.

  • Policymakers should consider the personal privacy of the individual while framing laws(even in a pandemic situation like COVID-19 ) because ignorance of personal rights can lead to the destruction of democracy gradually.
  • To protect democracy, people should be given a fair and equal chance to raise their voice against the government, it infringes their rights.
  • All the data collection should be unbiased and purely based on science.
  • There must be a rule of law framework to support the government’s necessity and proportionality. It should not be solely based on social responsibility.
  • There should be a framework which can assure that these extraordinary measures will not become permanent.

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