The concept of ‘Privacy’ has a great significance in human existence. It assures the protection of the dignity of the human beings. Any move aimed at intrusion in once personal space, in absence of plausible reasons, will be inappropriate and in utter disregard of his/her self-esteem. The sanctity of once belief that his/her intimate moments are free from unwarranted ingress has to be preserved. Article 12 of the Universal Declaration of Human Rights (UDHR) categorically provides for the protective scheme of the ‘right to privacy’. In a similar manner, Article 17 of the International Covenant on Civil and Political Rights (ICCPR) echoes for the right to privacy as well. Since, India is a signatory to both aforementioned United Nations instruments, it has explicitly incorporated right to privacy as fundamental right, following the landmark ruling delivered by Supreme Court Of India. In Justice K.S. Puttasway (Retd.), and Anr. v. Union of India and Ors. the nine judge bench of the Apex Court of the land has upheld the Constitutional validity by declaring the ‘right to privacy as fundamental right’ after placing it within the sweep of Article 21 of the Indian Constitution. This led us to acknowledge the fact that right to privacy flows from ‘right to life and personal liberty’ enshrined under Article 21, which makes it inalienable within the ambit of part III of the Indian Constitution. However, it has to kept in mind that no right is absolute and the situations can be there when it has to bow in the interest of public at large, under the umbrella of reasonable restrictions.
States witnessing privacy quizzing
When the situation is precarious around the globe due to COVID-19, the States must back its tech. tool development in the wake of serving the interest of its countrymen. The tech. tool utilized in a rational manner on humanitarian grounds will be in parity with its initiatives to contain pandemic.
The Government of India has developed Aarogya Setu App to succor people by dissemination of relevant information and to answer distress calls (made through inbuilt feature in the app) by asymptomatic patients seeking clarification about their doubts. In this app reputedly, the contact tracking will be done so that anyone who has come in close proximity of the infected patient can be provided medical assistance within reasonable time frame. Further, the said application is required to be installed in the cellphones so that the movement of the infected patients can be felt by the folks residing in the defined radius. Accordingly, the people can preclude themselves from venturing out needlessly. Recently, it has been alleged that the said app is in violation of the right to privacy guaranteed under Article 21 of Indian Constitution and facilitates constant vigil by Government over those who have installed the app. The aggrieved IFF (Internet Freedom Foundation) has approached the Parliament committee to speak out their woes about citizens data security and privacy amidst concerns over mandating the use of app. Further, it has been claimed by one of the ethical hackers that the said app can be easily hacked. Consequently, the information contained in it can be mis utilized for the perpetrator’s ulterior motive satisfaction. He tweeted that “A security issue has been found in your app. The privacy of 90 million Indians is at stake”. Indeed, the said claim was refuted by the Government of India by releasing a statement that “no data or security breach” and “no personal information of any user has been proven to be at risk by this ethical hacker”. Apparently, the said reply given by Government is well calibrated and in consonance with its determination to cater the needs of citizens during outbreak. Moreover, the Indian Government is working tirelessly in ensuring privacy, as manifest from the above stated prompt reply given to the ethical hacker. However, India is not the only State in the world who is combating the allegations of privacy crunch.
In United Kingdom, it has been alleged that the NHS COVID19 App developed for extending aid is violating right to privacy. Recently, UK’s parliamentary committee dealing with human rights regime has pitched for the legislation in place to ensure privacy by contending that “The Government has given assurances about protection of privacy so they should have no objection to those assurances being enshrined in law”. Such concerns expressed can be the manifestation of the fear among common masses associated with the use of tracking apps across the United Kingdom.
In United States, it is being touted that the citizens are not pretty much inclined to adopt COVID-19 tracking app. However, in the month of April, 2020 the research has been conducted by a professor of communication at the University of Zurich (Eszter Hargittai) and a researcher of security and privacy at Microsoft Research (Elissa M. Redmiles), where the findings has suggested that out of the pool of 1374 people surveyed, two-thirds are in favour of such apps inspite of the fact that their data may be shared, with the strong motivation to stop the spread of this apparent insurmountable disease.
In Australia, the people are being very vocal about their privacy associated with the adoption of COVID-19 tracking app. To address their grievance, the Government of Australia has come forward with the draft legislation in place to safeguard the privacy issues, with the introduction of sanctions in legislation which will help in causing deterrence and to prevent private data sharing instance outside its territory. Also, the draft has conferred the access of data only to the authorized agencies like public health authorities to stop unauthorized use.
In Germany, initially the Government was putting its reliance on PEPP-PT European COVID19 App which was quite popular on the continent. However, following the privacy snag felt in this tracking app, brought forth through complaints made by people, the Government has started putting its reliance and preferring to roll out Google and Apple developed apps which they claimed to have provided a robust mechanism to strengthen privacy of the citizens worldwide.
The list of the aforementioned States grappling with privacy concerns is merely illustrative and not exhaustive.
Conclusion
When the States are wrecked by pandemic globally, the stride made by the Government must be legitimate and must subscribe to Constitutional quintessence which encapsulates privacy as cardinal principle in governing civil society. The evolution of COVID-19 tracking apps in any State should never discount the rule of law which encompasses the law of privacy. The Indian Government, wherever warranted, must opt for exchange of dialogue with other countries facing similar privacy problems and try to fetch solution.
Though, the fact is undisputed that those who are sitting at the helm of Indian Governmental structure are toiling hard to shield its citizens amidst outbreak but extending solace to the restless also comes within its domain. This is being done by the Government through addressing privacy queries raised during press conference.
As per the privacy policy mentioned in the app, the existing Aarogya Setu ensures anonymity of the users and authorizes only the Government of India to use the collected data. This led us to the conclusion that Government of India is thoroughly committed in fencing the right of privacy. One must keep in mind that any right conferred through legislative scheme or which emerges from judicial activism must be preserved. Accordingly, all development in epoch of technology has to channelize with generosity rather suppressing essential rights.
Any unpleasant change aimed at snatch in g privacy must be thwarted by the proactive judicial institutions. The people should owe their allegiance to the guardian Government who are there to satisfy their privacy quest with respect to COVID-19 tracking app. It must do away the technical glitches to make the use of the app hassle free. Furthermore, it can enact stringent laws (like what Australia did) to avert data escape while making requisite amendments in the privacy policy of the existing app. The States reeling under similar privacy chaos across international boundaries must come forward and imbibe the faith in the global community that the app is meant for their own well-being.
Adv. Saksham Bhardwaj practices at the Supreme Court of India and Delhi High Court.