the most frequently used term in today's date. This infectious
disease has posed an unprecedented threat all over the world. To control the
spread of this disease and to prevent further transmission, the government
is trying to seek for various preventive measures by tracking the affected
people. These includes Epidemic modelling, contact tracing, documentation of
quarantine patients. In the midst of all these efforts to deal with the
pandemic, the use of these methods is raising sensible concerns of invasion
of privacy of individuals.
Balancing The Right To Privacy Of An Individual And Public Interest
Tracking By Varoius Authorities
Various countries are adopting different means in order to track COVID-19
affected people. The US and UK are coordinating with various private
agencies in order to track people and their detailed history. In Italy, the
government is analysing people's location data through their mobile tracking
to determine whether they are obeying government lockdown or not. Singapore,
Iran, Russia, and Israel are using mobile applications to track and identify
new cases of COVID-19.
India has also developed many such apps. The Ministry of Electronics and
Information Technology has launched a new application named ‘Corona
Kavach'[i] which make use of GPS tracker and notify the person if they have
come in contact with an infected person. Indian government is also
collecting data from airlines and railways. Kerala used CCTV footage,
tracing call records and using GPS to find the locations of the infected
persons and has published them. Rajasthan government made names and
addresses of COVID-19 suspects public through newspapers and social media,
they claimed that this will ensure effective containment of coronavirus
A list of home-quarantined persons in Nagpur went viral on
social media. Details included the person's name, address, mobile number,
start date of quarantine as well as the police station under which
jurisdiction the resident comes. In places like Delhi, several posters are
glued to the walls of the COVID suspected patients. The posters read
‘COVID-19: Do not visit. Home under quarantine', and it is undersigned by
the magistrate of the respective districts.[ii]
My present topic of discussion is on Indian perspective and to what extent
the government tracking is effective and efficient.
Incursion Of Privacy
These types of disclosure of information may seem normal to a layman. But it
has a negative impact as an individual's personal information is being
spread in public which is against their right to privacy. These disclosures
may also lead to an unhealthy society. There have been cases where several
medical workers were forced by their landlords to evict as they feared that
they could be a source to spread Covid-19.
Moreover, due to total lockdown
of the country, people are more engaged in social media platforms than ever.
Various persons can misuse this disclosed information and circulate those
through social media which may lead to various confusions amongst people.
These measures are in direct violation of medical ethics and patients' right
to privacy and confidentiality. During such a condition of public health
emergency; the government can adopt every possible measure which it thinks
But this doesn't mean that the right to privacy of an individual
should be completely sacrificed in order to give preference to public
health. It is essential to strike a balance between an individual's right to
privacy and public interest at large. The possible question in this context
is to what proportion can the right to privacy of people be invaded during
such a public emergency?
Right To Privacy - A Constitutional Right
According to Black's Law Dictionary, Right to Privacy means “right to be let
; the right of a person to be free from any unwarranted interference.
The Constitution of India incorporates Right to Privacy under Article 21.
The term ‘privacy' is a dynamic concept. There are several case laws in this
In the case of Kharak Singh v. State of Uttar Pradesh
desire for private life was rejected. The Supreme Court held that there is
no fundamental Right to Privacy.
Another notable judgement is Gobind v.
State of Madhya Pradesh
[iv] where the Supreme Court held the existence of a
fundamental right to privacy under Article 21. Though the petitioner lost,
privacy won for the first time and gained a small recognition under personal
liberty in the Indian Constitution[v].
The Right to privacy got recognised
as a fundamental right after the landmark judgement K.S Puttaswamy v. Union
[vi] by the Supreme Court of India in 2017. From this judgement, it
is clear that right to privacy is a fundamental right and it makes a place
amongst the Golden Triangle of the Constitution. The Puttaswamy judgement
laid down a three-part test to examine if an action is justified as
‘interference of privacy.' The three-part test includes whether the action
is sanctioned by law, whether the action is aimed at achieving a legitimate
aim and whether the action is necessary for the achievement of that aim[vii].
The Personal Data Protection (PDP) Bill was introduced in the Lok Sabha by
the Ministry of Electronics and Information Technology on December 2019.
This is a draft legislation. This Bill consists of important principles
regarding the personal data protection of an individual. It provides for
processing personal data by the data Fiduciary (person or government) on
grounds that a person's consent (Data Principal) is taken and the data
collected must be used only for a specific, clear, and lawful
However, in certain circumstances the personal data can be processed
without consent if required by the State for any legal proceedings or to
respond to any medical emergencies. Sub-clause (d) and (e) of Clause 12 of
the PDP Bill specifies a mechanism for the collection and processing of data
during a health emergency. The government should not excuse from other
principles of the personal data protection such as lawful administering,
transparency, and accountability.
Presently the government is implementing different provisions of the
National Disaster Management Act, 2005 and the Epidemic Diseases Act, 1897
in order to exercise emergency response measures. These acts do not comply
with the provisions of data protection. And in a country like India which
has no such data protection law or a data protection authority, there is
high chances of privacy concern of individual.
The data fiduciaries have to
abide by the rules laid down in the Puttaswamy judgement
as well as the
drafted rules of the PDP Bill. Presently the condition is so critical that
there are public health concern and people need to know who is COVID
infected. So, it is necessary to share the information, but it must be up to
a certain extent. The circulation of this information like name, contact
number, detailed address of the COVID-19 affected individuals in the form of
“quarantine lists” has caused a criticism and people have raised concerns
over their breach of privacy.
Publication of sensitive private information
can lead a person towards harassment, and even racism. According to several
news reports, many individuals are receiving repeated anonymous calls and
messages, after their private data was made public. In India, we do have a
social history of untouchability and at times like these, coronavirus
suspects are more likely to be victims of blaming and shaming. They are
getting hate messages from the societies and are being verbally abused.
may also deter people from reporting their illnesses and revealing their
travel history for the fear of social bullying. This would make it even
harder for the governments to trace cases and prevent the spread which is
the main purpose for which these measures were adopted.
India Government has launched a contact tracing application Arogya Setu
stem the novel coronavirus outbreak. It uses Bluetooth and location services
to trace a user's contacts. If a user tests positive of coronavirus, this
app will alert all devices with which the patient's phone comes in contact[viii]. Though the government has directed this app a compulsory for
over transparency, data storage and function-creep.
The government has
access not only to the users' names and birth date but also to their
biometric data. In case a user doesn't give access to all personal data, he
will have limited access to the app. Digital Rights Organization ‘Internet
called the app a ‘privacy minefield
' and also reported
that it doesn't adhere to the principles of transparency and accountability.[ix]
Karnataka has developed an application ‘Quarantine Watch
where it asks
citizens in home quarantine to upload selfies every hour. This is monitored
in a real-time basis to keep a watch whether the citizens are following the
quarantine. This app also has privacy issues. The operators may mishandle
those images. There are no such declarations that these apps will be totally
deleted once the pandemic is over. The government can keep a track of the
people even after this pandemic. These apps have given rise to issues as how
long will a user's data will be stored, and will it be secured?
In today's scenario government action cannot be based upon carte blanche.
But it should act effectively not only to protect lives and health of people
but also safeguard public trust on government. Coronavirus surveillance
might violate individual's privacy, but consent-based privacy framework
should be followed. The government must go an extra mile to ensure that
right to privacy is not quarantined in the process. There is a fear among
millions today, and we need to solve this fear. It is very challenging. But
also, an amazing opportunity to unlearn, relearn, and test our capabilities
and value systems.[x]
- FE ONLINE, Government of India launches coronavirus tracking app
Corona Kavach, now available for all android phones, FINANCIAL EXPRESS
(March 27,2020, 06:12 PM),
- Pooja Biraia Jaiswal, Privacy of COVID-19 suspects violated; names,
addresses made public, THE WEEK (March 22, 2020, 11:30 PM), https://www.theweek.in/news/india/2020/03/22/privacy-of-covid-19-suspects-violated-names-addresses-made-public.html
- Kharak Singh v. State of Uttar Pradesh, AIR 1964(1) SCR 332.
- Gobind v. State of Madhya Pradesh, 1975 (2) SCC 14.
- Right to Privacy: Cases that helped shape how it's understood by the
law, THE NEW INDIAN EXPRESS (July 19,2017), https://www.newindianexpress.com/nation/2017/jul/19/right-to-privacy-cases-that-helped-shape-how-its-understood-by-the-law-1630937.html
- K.S Puttaswamy v. Union of India, (2017) 10 SCC 1.
- SANYA KUMAR & SHRUTANJAYA BHARDWAJ, The publication of COVID-19
quarantine lists violates the right to privacy, THE CARAVAN (April 5,
- RUPALI BANDOPADHYAY & ARUN GUPTA, Data privacy and Aarogya Setu
Covid-19 app, THE TIMES OF INDIA (April 20, 2020, 1:27 PM), https://timesofindia.indiatimes.com/blogs/voices/data-privacy-aarogya-setu-covid-19-app/
- NEWS INDIA, ‘Privacy Minefield': India COVID-19 app raises
surveillance fears, ALJAZEERA (May 1, 2020), https://www.aljazeera.com/news/2020/05/minefield-india-covid-19-app-raises-surveillance-fears-200501090057782.html
- MADANMOHAN RAO, A Nation battles coronavirus- 65 quotes from India's
journey in tackling COVID-19, YOURSTORY (April 13, 2020), https://yourstory.com/2020/04/quotes-coronavirus-covid-19-india