The government’s technology solutions to fight COVID-19 do not meet minimum legal requirements
Today we live 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.
Doing so requires it to take 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.
It can be tempting in these circumstances to argue that the executive’s powers are limitless; that, if the government so chooses, fundamental rights can be suspended at will.
Appealing though it is, this argument is not only wrong but also dangerous, for precisely the reasons that 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.
Paying close attention to civil rights, therefore, becomes critical, not to impede the government’s efforts, but to ensure that rights — fragile at the best of times, and particularly vulnerable in a crisis — are not permanently effaced.
Data and public health
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.
Broadly, technology has been invoked at three levels. 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; and third, through the use of contact-tracing smartphone applications, such as AarogyaSetu.
In creating a list of infected persons, State governments have channelled the Epidemic Diseases Act of 1897.
But this law scarcely accords the state power to publicise this information. What’s more, these lists have also generated substantial second-order harms.
The use of geo-fencing and drone technologies is similarly unsanctioned. While cell-phone based surveillance might be plausible under the Telegraph Act of 1885, until now the orders authorising surveillance have not been published.
The modified surveillance drones used are equipped with the ability to conduct thermal imaging, night-time reconnaissance, and also — as some private vendors have claimed — the ability to integrate facial recognition into existing databases such as Aadhaar.
Contrary to regulations made under the Aircraft Act of 1934, the drones deployed also do not appear to possess any visible registration or licensing. Indeed, many of the models are simply not permitted for use in India.
The importance of civil rights
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, must be tested against the requirements of legality, necessity and the doctrine of proportionality.
This will require government to show us, first, that the restriction is sanctioned by legislation; second, that the restriction made is in pursuance of a legitimate state aim; third, that there exists a rational relationship between the purpose and the restriction made; and fourth, that the State has chosen the “least restrictive” measure available to achieve its objective.