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.
- 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.