Covid-19: Balance between civil liberties and public health - The Daily Guardian
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Covid-19: Balance between civil liberties and public health

Geeta Luthra

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As the world grapples with the Covid-19 pandemic and its profound impact across regions and industries, the aim for all countries in stemming the coronawave is to ensure the right to health and right to life, using least restrictive measures, respecting principles of liberty, equality and privacy. The pandemic’s devastating onslaught has resulted in adoption of multidimensional policies such as locking down borders, analysing travel history, leveraging technology to trace and isolate the infected, establishing isolation centres to test and treat the virus, etc.

Till now, India’s response to coronavirus has consisted mainly of restrictive measures. The containment strategy while an essential measure to protect the right to health and life, has had a severe impact on our basic human rights and civil liberties like freedom of movement and assembly, right to personal liberty and privacy and, in some circumstances, freedom of expression and press.

Under human rights laws, barring certain absolute rights, states have a wide “margin of appreciation” to derogate from human rights, provided their actions are in conformity with the law, proportionate and are necessarily in the interest of national security or public safety or public health etc. Amidst the pandemic, in a disturbing trend, countries around the world are using the pandemic as a pretence to use overly intrusive tools, including use of facial recognition and phone tracking, resulting in a search for balance between protecting public health and personal privacy.

Against this backdrop, recent guidelines dt 01.05.2020 issued by the Ministry of Home Affairs mandating use of Aarogya Setu, a contact tracing application that collects, stores, and makes use of users personal information, continuously tracks users location using both GPS and Bluetooth, makes use of a centralised data collection system, fails to adhere to the consent, necessity and proportionality principles, lacks accountability and transparency requirements, for both public and private sector employees and persons in containment zones, placing obligation upon employers to ensure 100% coverage, has raised serious concerns with respect to privacy, informational autonomy, security, data protection, and individual self-determination.

In this context, Lord Acton’s saying “Power corrupts, and absolute power corrupts absolutely”, is extremely relevant, even though the extraordinary situation created by Covid-19 may mandate extraordinary solutions it is imperative that in this fight against Covid-19 we do not permanently erode our basic human rights and civil liberties. Stalking by individuals is a penal offence under the Indian Penal Code which is punishable with up to 3 years of imprisonment– What about stalking by State through mass surveillance tools/ applications? What are its limits and under what circumstances, if any, can such measures be permissible? Is there a real danger of being swamped over by such surveillance systems?

Understanding Privacy

The advent of Covid-19 has brought with it serious privacy threats that involve unprecedented development/ deployment of advanced technologies, systems and infrastructures that are highly capable of being used to violate an individual’s right to privacy and pose the newest, and arguably one of the most serious, threats to liberty in modern society.

Questions that still loom large for consumers, industry and policy makers are how to define privacy in this global data driven digital age, its limits and scope, and what should be the balance between privacy and public health. What is privacy–Each and every individual’s ability, without any discrimination, to make choices/decisions with respect to his body, personal information and having complete autonomy over his personal choices free from State interference- A right to freely choose where you live, what you do, whom you marry, sexual orientation, right to religious freedom and a right to live with dignity.

Canada Supreme Court Justice (retired) Hon. Gérard V. La Forest, in R. v. Dyment, [1988] 2 S.C.R. 417, prominently judged that “privacy is at the heart of liberty in a modern state” and “the restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state”. The US Supreme Court, recognising the technological advancements, in Katz v. United States, 389 U.S. 347, 351 (1967) extended the interpretation of the Fourth Amendment to include not just properties or physical places, but also people, as long as the person concerned exhibits first “an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable”.

In India, on 24th August 2017, a nine-judge bench of the Supreme Court in Justice K.S. Puttaswamy (Retd.) v. Union of India, 2017 10 SCC 1 unanimously affirmed right to privacy as a fundamental right, placing individual dignity and autonomy at the heart of the constitutional order. However, it was clarified that like most other fundamental rights, the right to privacy was not an absolute right, and could be overridden for preservation of public health and safety.

Justice D.Y. Chandrachud, while delivering the main judgement, held that privacy is intrinsic to life, liberty, freedom and dignity and therefore, is an inalienable natural right-“While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being.”

The Puttaswamy judgement lays down a three-part test to determine whether an action of State breaching a citizen’s right to privacy was valid or not. First, whether the action has a legitimate basis. Second, whether the action was necessary for achieving a legitimate goal. Third, it has to be an action which is proportionate for the achievement of that aim.

Mandatory imposition of Aarogya Setu application

Aarogya Setu’s collection, use and disclosure of personal information in absence of a specific and explicit law bestowing upon the Government express powers that provide a basis for collection, collation and dissemination of personal information is prima facie illegal and in violation of Articles 14, 19 and 21 of the Constitution.

Even though, the Application, having a legitimate purpose of preservation of public health, passes the second test, its mandatory imposition, in absence of users’ consent, in violation of the necessity principle and disproportionality invades the Constitutional rights of individuals. The critical nature of obtaining consent from the user and providing an option to him to withdraw the same, before collecting, collating and disseminating sensitive health records is fortified by Chief Justice S.A. Bobde’s observations in the Puttaswamy judgement, wherein he observed that consent was essential for distribution of inherently personal data such as health records.

The exercise of extraordinary powers by the Executive during this crisis has, once again, highlighted the pivotal role the legal system plays in securing the rule of law and the burden placed upon the courts to detect and address the Executive’s abuse of extraordinary powers. At present several writ petitions, including Jackson Mathews (Managing Partner at Leetha Industrie) vs. Union of India & Ors., John Daniel (General Secretary of the Thrissur District Congress Committee) vs. Union of India and Anr., challenging the mandatory imposition of Aarogya Setu application are pending adjudication

Before the Kerala High Court, wherein the Petitioners have, inter alia, raised the following interesting issues, (i) Legality of holding employers vicariously liable for criminal acts of their employees (nondownload of application); (ii) Apart from failure to address the staggeringly low number of smartphone users (out of approx 1.3 billion people less than 400 million), the application fails to address issues of users phone crashing or leaving of phone at home by user.

The HIV/AIDS epidemic of the 1980s and 1990s is a perfect example that demonstrates how illegitimate and overly intrusive infringement of people’s civil liberties, using emergency powers, can backfire and prove to be counter-productive to the aim of preservation of public health. Among the measures that were adopted, were routine testing, often undertaken without explicit patient consent; reporting to local health authorities’ names of those who test positive for infection; contact tracing; and notification of possibly infected people.

Health experts found that reporting names of HIV patients by doctors to States, contact tracing and notification measures that were adopted to contain the spread, directly resulted in a steep decrease in number of detected cases as the people with symptoms chose not to get tested because of the stigma surrounding the disease, and the same resulted in refusal by states to accept name-based reporting. Ronald Bayer, a professor at the Centre for the History and Ethics of Public Health at Columbia University, in his research paper argues that “good public health respects civil liberties, and anything that advances human rights and civil liberties would advance public health” and “We learned that if you intrude on privacy you will be counterproductive in terms of controlling the epidemic”.

Thus, in these unprecedented times, when collection and circulation of patients’ personal information for preservation of public health is necessary, right to privacy and autonomy are at their most vulnerable/fragile state. It has become essential for each and every citizen to be vigilant to the infringement/ intrusion of civil liberties and human rights, not to impede the Government’s efforts, but to ensure that these treasured rights are not permanently effaced from statute books, and extraordinary powers granted to the Government do not continue once Covid-19 is over.

At present, mandatory imposition of the Aarogya Setu, in absence of statutory safeguards, scientific evidence to back its efficacy, necessity, transparency and proportionality, falls foul of State’s commitment to uphold the rule of law, international human rights obligations and principles of privacy, liberty and security, and the government should come up with novel tools equipped with constitutional safeguards including less obtrusive applications that prevent arbitrary interference with people’s privacy, are subject to a time bound periodic review as adopted by UK in its Coronavirus Act, 2020, and while advancing public health also advance civil liberties and human rights.

Geeta Luthra, Senior Advocate, LLM, M.Phil (Cambridge).

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Legally Speaking

GAUHATI HIGH COURT QUASHES NO-CONFIDENCE MOTION AGAINST GRAM PANCHAYAT PRESIDENT CITING PARTICIPATION OF MEMBER DISQUALIFIED FOR HAVING THREE CHILDREN

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The Gauhati High Court in the case Jugitawali Pawe v State of Assam and 15 ors observed and quashed a resolution expressing no-confidence in the petitioner – the President of a Gram Panchayat, as a result of which she as removed from office. It was stated that it is as per the citing no compliance with Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995.

It was preferred by the petitioner to the materials available on record to argue that one of the members of the Gaon Panchayat, the respondent. The respondent voted against the petitioner and had given birth to her third child the previous year. Moreover, by virtue of Section 111(2)(a) of the Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995, the petitioner stood automatically disqualified on the date of voting. Following, which her vote was taken by passing No-confidence motion.

It was prayed by the petitioner in the plea for setting aside the impugned resolution and for issuance of a direction to restore his client back in the office. Thereafter, to initiate fresh proceedings, liberty should be granted to the respondent, following the due process.

It was agreed by the Counsel representing for the respondent that the said member of the panchayat had been disqualified but retained on the ground that the disqualification would have no bearing on the petitioner’s case, as the impugned resolution was passed before the declaration of petitioner disqualification.

In the present case, It was noticed by Justice Suman Shyam the member had voted against the petitioner and without her vote. The petitioner would not have been ousted from office. Justice Shyam also found no dispute about the fact that the member had incurred disqualification under the law prior the date of adoption of the impugned resolution. Justice Shyam found it unnecessary to delve into other aspects of the matter which includes the procedural formalities for declaring the member a disqualified candidate.

It is observed that the impugned resolution was declared to be vitiated and liable to be set aside. Further, the Court restored the petitioner to the office of the President of the Bongalmara Gaon Panchayat with immediate effect and it was stated by the court that the order will not stand in the way should the authorities or any member of the Gaon Panchayat propose a fresh motion of “no-confidence” against the petitioner and the due process of law needs to be followed.

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Halt DDA’s demolition action against jhuggis in Nizamuddin’s Gyaspur area, orders Delhi High Court

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board, the residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

The Delhi High Court in the case Manoj Gupta & Ors. v. DDA & Ors observed and has ordered status quo on the Delhi Development Authority’s proposal to demolish jhuggi clusters in city’s Gyaspur area in Hazrat Nizamuddin. The vacation bench comprising of Justice Neena Bansal Krishna observed in the petition filled by the residents and the court granted an interim relief.

It was ordered by the court status quo till July 11, the next date of hearing.

The bench orally remarked that a ten-day delay in demolition won’t make a difference but if today it is demolished and later, we come to know that they were entitled, who’s going to… the bench will consider it on July 11, 2022 but in the Meanwhile, some protections are entitled them. Adding this, Status quo be maintained. If since 1995, they have been there, heavens won’t come down if for 10 more days they are protected.

In the plea the petitioner stated that the T-Huts settlement in the area, which was stated by the authorities to vacate. It has been in existence for almost two decades and compromise of 32 jhuggis or households.

In the plea it was alleged that the bulldozers have been parked around the camp and a DDA official has orally asked them to vacate the area and it is noted that till date no proper notice have been sent to them nor has DDA conducted any survey of the area.

Furthermore, the DDA did not provide any alternate arrangement for their rehabilitation which resulted in extreme distress among the residents.

Moreover, it was admitted by the petitioner that the land in question belongs to DDA and they may seek that status-quo to be maintained at the site. It was urged that the residents should not be physically dispose or evicted from the demolition site until the survey is conducted and rehabilitation is provided to the residents as per the DUSIB policy of 2015.

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board. The residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.

It is observed that in the case Ajay Maken v. Union of India, Reliance is placed on the Supreme Court decision and the High Court decision in the case Sudama Singh & Ors. v. Government of Delhi & Anr, it was held in the case that that removal of jhuggis without ensuring relocation would amount of gross violation of Fundamental Rights under Article 21 of the Constitution. Further, it was held that the agencies conducting the demolitions ought to conduct survey before undertaking any demolition.

It is submitted that these observations would apply across the board, in the entire NCT of Delhi.

Advocates Vrinda Bhandari, Shiyaz Razaq, Kaoliangpou Kamei, Jepi Y Chisho and Paul Kumar Kalai, represented the petitioner.

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TELANGANA HIGH COURT: PLACE OF RESIDENCE OF THE ARBITRATOR WOULD NOT BE THE SEAT OF ARBITRATION

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The High Court of Telangana in the case M/s S. Square Infra v. Garneni Chalapathi Rao observed and held that the place of residence of the arbitrator would not determine the seat of arbitration.

The Single bench comprising of Justice P. Sree Sudha observed and held that merely because an arbitrator residing in Hyderabad has been appointed, it does not mean that only the Courts at Hyderabad would have the jurisdiction to decide all the matters arising out of arbitration agreement.

Facts of the Case:

In the present case, after the dispute arouse between the parties, the respondent sent a letter to the petitioner for nomination an arbitrator who is residing in Hyderabad. To its said notice, petitioner replied and declined the appointment of the arbitrator for the reason that there was no dispute which required the appointment of an arbitrator.

A suit was filled by the respondent before the VII Additional District Judge Sangareddy, seeking for relief of permanent injunction. An application was filled by the petitioner under Section 8 of the Arbitration & Conciliation Act and the parties referred to the arbitration.

An application was filled by the respondent under section 9 of the Arbitration & Conciliation Act before the Principal District Judge, Sangareddy, Subsequently, an application was filled by the petitioner for transferring the application from the Court at Sangareddy to Court at Hyderabad.

Contentions made by Parties:

On the following grounds, the petitioner sought the transfer of application.

An arbitrator residing in Hyderabad was nominated to respondent. However, only the courts in Hyderabad would have the jurisdiction to decide all the matters arising out of the arbitration.

It was stated that the nomination of an arbitrator residing in Hyderabad amounted to designating Hyderabad as the Seat of Arbitration.

On the following grounds, the respondent countered the submissions of the petitioner:

An application was filled by the petitioner under Section 8 of the A&C Act before the Court at Sangareddy. However, in terms of Section 42 of the A&C Act, only the court at Sangareddy would have the jurisdiction to decide all the matters arising out of arbitration.

Court Analysis:

The Court held that the seat of arbitration would not be decide by the place of residence of the arbitrator.

The argument of the petitioner was rejected by the court that since the respondent had initially nominated an arbitrator residing in Hyderabad, the Hyderabad Court would have the jurisdiction.

The court stated that merely because a party has nominated an arbitrator who resides in Hyderabad, the same would not designate Hyderabad as the Seat of arbitration in absence of any designation of the seat under the arbitration agreement.

It was further stated by the court that the application filled by the petitioner filled under Section 8 application before the Court at Sangareddy consequent to which the parties were referred to arbitration. Therefore, the Court would have the jurisdiction, in terms of Section 42 of the A&C Act.

The Transfer petition was dismissed by the Court.

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DELHI HIGH COURT REMANDS IN THE MATTER BACK TO ASSESSING OFFICER AFTER SETTING ASIDE: JUST 3 DAYS’ TIME GRANTED TO RESPOND TO THE INCOME TAX NOTICE

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

The Delhi High Court in the case Shubham Thakral Vs ITO, the Delhi bench comprising of Justice Manmohan and Justice Manmeet Pritam Singh Arora observed and remanded the matter back to the assessing officer as just 3 days’ time was granted to respond to the income tax notice.

In the present case, the petitioner/assessee assailed the notice under Section 148A (b) of the Income Tax Act, 1961 and the order passed under Section 148A (d) for the Assessment Year 2018–19.

It was contended by the assessee that only three days’ time was granted to the assessee to respond, as against the mandatory statutory period of at least seven days. However, despite of the fact that the annexure attached to the notice gave the petitioner eight days to respond, the e-filing submission portal was closed earlier, in violation of Section 148A (b) of the Income Tax Act.

Furthermore, the petitioner relied on the decision of Delhi High Court, in the case of Shri Sai Co-operative Thrift and Credit Society Ltd versus ITO, the Delhi High Court in the case held that under Section 148A (b), a minimum time of seven days has to be granted to the assessee to file its reply to the show cause notice.

No objections were raised by the department/respondent to the matter being returned to the Assessing Officer for a fresh decision in accordance with the law. Accordingly, the court set aside the order passed under Section 148A (d) for the Assessment Year 2018-19. The Assessing officer was directed by the court to pass a fresh reasoned order in accordance with the law after considering the reply of the petitioner, which was directed to be filed within a week.

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ALLAHABAD HIGH COURT: ADVOCATES SHOULDN’T ADVISE CLIENTS TO REAGITATE MATTERS IF THERE IS NO ERROR APPARENT ON FACE OF RECORD

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The Allahabad High Court in the case Malhan and 17 Others Vs. State Of U.P. And Another observed and stated that an advocate should be given such a piece of advice when there is no error apparent on the face of the record nor was there any reason why the matter be re-agitated it was finally decided.

The bench comprising of Justice Dr. Kaushal Jayendra Thaker and Justice Vivek Varma observed while dealing with the civil review application wherein the bench observed the concerned advised his client to make a chance by filling the instant review application after a period of six year.

In the present case, a civil review petition was filled along with the application under section 5 of the Limitation Act, 1963., the application was filled for seeking condonation of delay in filling the application, the application was filled with a delay of six years i.e., 1900 days.

It was stated by the applicant that the review application could not be filled due to the blockage of public transportation on account of the COVID-19 guidelines.

Moreover, the court observed that the appeals were disposed of by the Apex Court in the year 2016 and only in 2020-2021, the pandemic struck India and furthermore, it cannot be said that due to the COVID guidelines the public transportation was blocked and however, the applicant could not come to Allahabad Court to file review.

Further, it was stated that the court asked the counsel for the review applicants to explain the delay in filling the review application, to which the council gave a strange reply that the counsel had advised the clients that they must take a chance by filling this review application after a period of six years.

Following this, the Court observed:

The court noted that an advocate should not give such an advice when there is no error apparent on the face of record nor was there any other reason that when the matter was finally decided, why the matter be re-agitated.

It was stated that the court has no reason to condone the delay of six years as the same was not explained as to why this review application is filed after such an inordinate delay.

The Court opined that the lapse in approaching the court within the time is understandable but a total inaction for long period of delay without any explanation whatsoever and that too in absence of showing any sincere attempt on the part of suiter, this would add to his negligence and the relevant factor going against him.

The court observed that careless and reckless is shown by the review applicant in approaching the court and due to the condemnation of delay in the application with a token cost of Rs.10,000/, the court dismissed the application.

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SUPREME COURT CRITICISES HIGH COURT: POSTING ANTICIPATORY BAIL PLEA AFTER TWO MONTHS CAN’T BE APPRECIATED

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The Supreme Court in the case Sanjay versus The State (NCT of Delhi) & ANR observed and stated that in the case where personal liberty is involved, the court is expected to pass orders at the earliest while taking into account the merits of the matter in one way or other. Further, the top court observed that posting of an application for anticipatory bail after a couple of months cannot be appreciated by the court.

The bench comprising of Justice C. T. Ravikumar and the Justice Sudhanshu Dhulia was hearing a June 2 SLP against the Delhi High Court in a petition filed under section 420, 467, 468, 471, 120-B, 34 of the Indian Penal Code, 1860 for seeking anticipatory bail in a 2022 FIR, a notice is issued. It was stated that the learned APP for the state is present and accepts the notice and seeks time to file status report. The High Court in the impugned order stated that Let the status report be filed by the state prior to the next date with an advance copy to the learned counsel for the petitioner. The matter is to be list on 31.08.2022.

It was noted by the bench comprising of Justice Ravikumar and the Justice Dhulia that in the captioned Special Leave Petition, the grievance of the petitioner is that the application for anticipatory bail moved by the petitioner, being Crl. M.A. No. 11480 of 2022 in Bail Application No. 1751 of 2022 without granting any interim protection, was posted to 31.08.2022. on 24.05.2022, the bail application was moved on.

However, the bench asserted that the bench is of the considered view that in a matter involving personal liberty, the Court is expected to to pass orders at the earliest while taking into account the merits of the matter in one way or other.

It was declared by the bench that at any rate posting an application for anticipatory bail after a couple of months cannot be appreciated by the court.

Further, the bench requested to the High Court to dispose off the application for anticipatory bail on its own merits and in accordance with law expeditiously, preferably within a period of three weeks after reopening of the Court. Adding to it, the bench stated that if the main application could not be disposed off, for any reason, within the stipulated time, relief sought for in the interlocutory and on and on its own merits, the application shall be considered.

While disposing of the SLP, the bench directed in its order that we grant interim protection from arrest to the petitioner herein, Till such time.

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