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Introduction quote

The greatest danger to liberty lies in insidious encroachment by men of zeal, well-meaning but lacking in due deference for the rule of law. – Statement of the Supreme Court in a previous judgement.

Extent of Powers to stop a Pandemic

  • On one side of the argument, a pandemic is an existential threat and the paramount need to save lives takes precedence over all other interests.
  • However, as Justice Khanna pointed out: 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.

How has the Government used Data technology?

  • First, in creating a list of persons suspected to be infected with COVID-19.
  • Second, in deploying geo-fencing and drone imagery to monitor compliance by quarantined individuals.
  • Third, through the use of contact-tracing smartphone applications, such as AarogyaSetu.

Data Concerns

  • The state’s most significant responses to the pandemic have been predicated on 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.
  • In creating a list of infected persons, these lists have also generated substantial second-order harms – and 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.
  • While cell-phone based surveillance might be plausible under the Telegraph Act of 1885, until now the orders authorising surveillance have not been published.
  • With respect to the use of drone technologies- Contrary to regulations made under the Aircraft Act of 1934, the drones deployed also do not appear to possess any visible registration or licensing.
  • The use of contact-tracing applications- the efficacy of applications such as these have been questioned by early adopters, such as Singapore. These Applications can be used as an object of coercion and without a statutory framework, and in the absence of a data protection law, the application’s reach is boundless.

Conclusion: 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.
  • 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.
  • Our Constitution is intended for all times — for times of peace and for times of crises.
December 2023