RIGHT TO PRIVACY AND AAROGYA SETU AAP
-By Ishita Gupta, JIMS, GGSIP University
In the previous years in India, the law would give protection only from physical dangers like trespass from which the proper to Property emerged to secure his house and cattle. This was considered to be the proper to Life. As the ever changing common law grew to accommodate the issues faced by the people, it had been realized that not only was physical security required, but also security of the spiritual self also as of his feelings, intellect was required. Now the proper to Life has expanded in its scope and comprises the proper to be including the proper to liberty secures the exercise of in depth civil privileges; and the term “property” has grown to comprise every sort of possession be it an intangible property or a tangible property.
Right to privacy isn't enumerated as a Fundamental Right within the Constitution of India. The scope of this right first came up for consideration in Kharak Singh’s Case which was concerned with the validity of certain regulations that permitted surveillance of suspects. The minority decision of SUBBA RAO J. deals with this light. In the context of Article 19(1) (d), the proper to privacy was again considered by the Supreme Court in 1975. (Kharak Singh v. State of Uttar Pradesh AIR 1963 SC1295: (1964) 1 SCR 332)
In a detailed decision, JEEVAN REDDY J. held that the proper to privacy is implicit under Article 21. This right is that the right to be including the concept of Privacy. In the context of surveillance, it's been held that surveillance, if intrusive and seriously encroaches on the privacy of citizen, can infringe the liberty of movement, guaranteed by Articles 19(1)(d) and 21.
INTERNATIONAL PERSPECTIVE OF PRIVACY
Article 12 of Universal Declaration of Human Rights (1948) states that “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attack upon his honour and reputation. Everyone has the right to protection of the law against such interference or attacks.”
Article 17 of International Covenant of Civil and Political Rights (to which India is a party) states “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home and correspondence, nor to unlawful attacks on his honour and reputation”
Article 8 of European Convention on Human Rights states “Everyone has the right to respect for his private and family life, his home and his correspondence; there shall be no interference by a public authority except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the protection of health or morals or for the protection of the rights and freedoms of others.”
RIGHT TO PRIVACY IN INDIA
As already discussed Article 21 of the Constitution of India states that “No person shall be bereft of his life or personal liberty except consistent with procedure established by law”. The right to life enshrined in Article 21 has been liberally interpreted soon mean something quite mere survival and mere existence or animal existence. It therefore includes all those aspects of life which makes a man’s life more meaningful, complete and price living and right to privacy is one such right.
The first time this subject was ever raised was within the case of Kharak Singh v. State of UP where the Supreme Court held that “Regulation 236 of UP Police regulation was unconstitutional because it clashed with Article 21 of the Constitution. It was held by the Court that the proper to privacy may be a a part of right to protection of life and private liberty. Here, the Court had equated privacy to non-public liberty.” (AIR 1963 SC1295: (1964) 1 SCR 332))
In Govind v. State of Madhya Pradesh, Mathew, J. accepted the right to privacy as an emanation from Art. 19(a), (d) and 21, but right to privacy is not absolute right. “Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right, the fundamental right must be subject to restriction on the basis of compelling public interest”.” Surveillance by domiciliary visits need not always be an unreasonable encroachment on the privacy of a person owing to the character and antecedents of the person subjected to surveillance as also the objects and the limitation under which the surveillance is made. The right to privacy deals with ‘persons not places’.” (1975 AIR 1378, 1975 SCR (3) 946)
In Naz Foundation Case (2009) Delhi HC gave the landmark decision on consensual homosexuality. “In this case S. 377 IPC and Articles 14, 19 & 21 were examined. Right to privacy held to protect a “private space in which man may become and remain himself”. It was said individuals need a place of sanctuary where they can be free from societal control- where individuals can drop the mask, desist for a while from projecting on the world the image they want to be accepted as themselves, an image that may reflect the values of their peers rather than the realities of their nature.” (WP(C) No.7455/2001)
It is now a settled position that right to life and liberty under article 21 includes right to privacy. Right to privacy is ‘a right to be let alone’. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. Any person publishing anything concerning the above matters except with the consent of the person would be liable in action for damages. Position however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.
Through a unanimous judgment by the Supreme Court of India (SCI) in Justice K.S. Puttaswamy (Retd) v Union of India, a resounding victory for the concept of privacy was developed and recognised in India. The ruling of this judgment was the outcome of a petition challenging the constitutional validity of the Indian biometric identity scheme Aadhaar. The judgment's ringing endorsement of the right to privacy as a fundamental right marks a watershed moment in the constitutional history of India. The one-page order signed by all nine judges declares:
“The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.” (WRIT PETITION (CIVIL) NO 494 OF 2012)
The right to privacy in India has developed through a series of decisions over the past 60 years. Over the years, inconsistency from two early judgments created a divergence of opinion on whether the right to privacy is a fundamental right. Last week's judgment reconciles those different interpretations to unequivocally declare that it is. Moreover, constitutional provisions must be read and interpreted in a manner which would enhance their conformity with international human rights instruments ratified by India. The judgment also concludes that privacy is a necessary condition for the meaningful exercise of other guaranteed freedoms.
The decision is especially timely given the rapid roll-out of Aahaar. In fact, the privacy ruling arose from a pending challenge to India's biometric identity scheme. We have previously covered the privacy and surveillance risks associated with that scheme. Ambiguity on the nature and scope of privacy as a right in India allowed the government to collect and compile both demographic and biometric data of residents. (https://www.eff.org/deeplinks/2017/08/indias-supreme-court-upholds-right-privacy-fundamental-right-and-its-about-time)
RIGHT TO PRIVACY AND AAROGYA SETU APP
Aarogya Setu App is a new application launched by the Government of India to make aware the citizens, so that they can protect themselves from getting away with a deadly pandemic of Coronavirus against which the whole world is fighting in the present time. The app promises to provide information regarding the covid-19 positive patients so that other people could save themselves from getting in contact with the infected person. The App is used with the support of Bluetooth services that are available in the mobile phones.
Now when the Bluetooth service of the mobile is enabled then a victim is highly prone towards getting affected by the cyber crime called blue bugging. Blue bugging is a technique that allows skilled hackers to access mobile commands on Bluetooth-enabled devices that are in discoverable mode. (https://www.techopedia.com/definition/5044/bluebugging). A new vulnerability found in commonly available Bluetooth has put millions of devices on risk.
The vulnerability allows a cyber criminal to intercept and monitor the data exchanged from a device in proximity. This loophole affects devices from Broadcom, Qualcomm, Intel, and Apple among others. Many Android handsets may also be at risk. (https://www.hindustantimes.com/tech/bluetooth-vulnerability-puts-millions-of-devices-at-risk-here-s-what-you-should-do/story-xraie3IEBN39YMENA9Y2ZI.html) hence, the privacy of any person can be easy attacked with the help of blue bugging especially when the Bluetooth service of the mobile is enabled and in accessible mode.
Before initiating the use of the Aarogya Setu App, every individual is supposed to accept certain terms and condition in that particular App. One of the clauses of that App has limited the liability of the government towards the user data for its Aarogya Setu contact tracing app has made some legal experts question whether, in case of unauthorised access to the information, a legal recourse would be the only option available, especially since the app has been made mandatory for a significant section of citizens.
Although the liability clause is standard practice to indemnify companies or institutions, experts have expressed concern since the government has required all employees of private companies to compulsorily download the app once they start working from offices when the ongoing nationwide lockdown is lifted. (https://economictimes.indiatimes.com/tech/software/legal-experts-point-out-liability-concerns-with-the-aarogya-setu-app/articleshow/75561944.cms)
The cyber security in India is not considered as strong as it exists around the world. Despite various laws have been passed by the government of India in order to protect people from cyber crimes, the impact of cyber crime in India has not been reduced as there a lack of jurisdiction of cyber crime cases in India, and there is no specific punishment of cyber crime.
Aarogya Setu App is considered one of the major issues towards infringement of the privacy rights of the people that can be easy attacked due to enabling of Bluetooth service in the device. However, when the option of the terms and conditions pops-up with the App, there is a clear indication that is provided by the government that “we understand the nature and sensitivity of this topic and have taken strong measures to ensure that your data is not compromised” but still personal awareness of every citizen is well required so that on the individual bases, every person can save themselves from getting attacked by the fraudsters.
Hence, it is analysed that it is now a settled position that right to life and liberty under article 21 includes right to privacy. Right to privacy is ‘a right to be let alone’. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. Any person publishing anything concerning the above matters except with the consent of the person would be liable in action for damages.
India’s Covid-19 contact tracing app Aarogya Setu released a statement today responding to the claims of French hacker Robert Baptiste of a privacy issue in the app. While the hacker did not disclose the details of the app’s vulnerability, the Aarogya Setu developers issued a statement saying that user data is safe and secure.
The Aarogya Setu app, is a sophisticated surveillance system, outsourced to a private operator, with no institutional oversight - raising serious data security & privacy concerns. Technology can help keep us safe; but fear must not be leveraged to track citizens without their consent. Hence, safety from covid-19 is also important but no App must become a reason for the compromise of the safety and privacy of Indian Citizens. On the other hand, even the citizens can also initiate to protect themselves by adequately checking whether their Bluetooth is on accessible mode or not. If the accessibility mode of buetooth is disabled then everyone can save themselves.
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