Terrible times often call for innovative and radical measures. The coronavirus pandemic led to actions being taken under the Epidemic Diseases Act, 1897, and the Disaster Management Act, 2005, is one such unparalleled event. While all the governmental authorities and the health workers are working to curb the disease, it has also become of paramount importance to keep a record of the affected people to implement control and preventive measures.
Data analysis and tracking has emerged as an unexpected hero in this time of the pandemic. Keeping a record of this data has enabled the governmental authorities to stop the spread of the virus at its source and to prevent deaths, the unnatural burden on the healthcare system, social disruption, and economic loss. As the Government and the respective authorities are responsible to control the spread of the virus, not only in their own respective countries but also in other evolving countries, the governments all over the globe have taken the stance that the free flow of information updated in real-time will allow for the steady formation of a global picture which would eventually help in curbing the disease.
The mobile applications being developed and used in various countries contain their privacy guidelines and the terms and conditions to which it is bound. However, while sharing the data and contact tracing, through some different means seems to be a viable option, privacy concerns regarding which the storage, utilization, and sharing of such data remain an unanswered issue.
TRACKING METHODS USED WORLDWIDE:
China, being the epicenter of coronavirus was the first country to tackle the situation by using sophisticated methods, such as monitoring and accessing citizens’ social media and communication applications, along with the usage of drones, equipped with facial recognition, to track the movement of the citizens and to track the suspected people in real-time. Russia had taken this surveillance practice to another level by installing CCTV cameras in urban areas for counterterrorism purposes to enforce the lockdown.
In India, along with mobile applications such as AAROGYA SETU and other applications introduced by the state governments, India has used mapping techniques such as contact tracing to creating buffer zones, like hotspots and clusters, and location tracking techniques to rack the infected people. These various mobile applications and Bluetooth trackers map the spread of the disease through the Geographic Information System (GIS), which assists the authorities during outbreaks. The Indian Government also testes an application that uses telecom data to send emails and messages to the authorities if a person evades quarantine. While the Indian Government declared that all personal data like name, sex, age, etc would remain encrypted and not be disclosed to any third party.
THE RIGHT TO PRIVACY OF THE INDIAN USERS:
To determine whether the actions taken by the Government authorities strike the perilous balance between being beneficiary and being intrusive, the tests of which had been laid been down by the Supreme Court in its judgment in KS Puttaswamy v. Union of Indian have to be looked at. On 24th August 2017, the Hon’ble Supreme Court had declared that the Right to Privacy is a Fundamental Right under Article 21 of the Indian Constitution.
Any judgment of the state should be measured against the three tests laid down in the majority judgement passed by Justice DY Chandrachud. First, the legality of the action has to be questioned. The Central Government can rely on the residuary powers under section 6 of the Disaster Management Act, 2005 and the state authorities claim that they derive their powers from Section 2(1) of the Epidemic Diseases Act, 1897, and therefore it may be difficult that such laws do in fact grant power to collect, organize and propagate the information of the citizens in a manner in which it has been done.
If it is argued that the actions taken have a basis in law, the second test of the legitimate aim has to be satisfied. In the present pandemic situation, where the question of public health has been contrasted against the seemingly privileged concept of privacy, the answer is simple. As pressing as the need to prevent the spread of the disease maybe it is necessary to ensure that the right to privacy does not get curtailed.
The third test laid down by Justice Chandrachud, deals with the proportionality of the legitimate aim with the object sought to be achieved. The objective behind the implementation of these measures is to curb the spread of the virus and to ensure a lesser number of deaths. The actions taken should be proportional and not manifestly arbitrary and therefore the states should collect minimum data and ensure that it is anonymised, used for the limited purpose of handling the health of the citizens, and not transferred to any third party.
Based on these tests, the generation of maps while demarcating the hotspots of covid-19 and using geofencing may make a cut, measures such as publishing the lists of the people affected along with their details is unconstitutional. Recently, a petition was filed before the Madras High Court, seeking to reveal the identities of the people affected by the virus wherein the Court, without delving upon the privacy aspects, held that there would definitely be social stigma and aspersions according to such revelation and the petition was accordingly dismissed.
The dichotomy between public health preservation and protection of the right to privacy of the citizens is a serious concern that cannot be ignored. In the present situation, the tracing and surveillance do serve a compelling state interest, however, for constitutional sanctity, it is imperative to enforce safeguards as well. Public health is one of the main reasons to increase the monitoring of the citizens but it must be done with utmost caution. If caution is not exercised in times of urgency, we may be successful in containing the spread of the virus, but may irreparably damage the constitutional fabric.