Passage Based Questions: Legal Aptitude - 22

Direction: Each set of questions in this section is based on the reasoning and arguments set out in the preceding passage. Please answer each question on the basis of what is stated or implied in the corresponding passage. In some instances, more than one option may be the answer to the question; in such a case, please choose the option that most accurately and comprehensively answers the question.
The pandemic, is an existential threat and the paramount need to save lives takes precedence over all other interests. Appealing though it is, this argument is not only wrong but also dangerous, for precisely the reasons that Justice Khanna outlined: when faced with crises, governments - acting for all the right reasons - are invariably prone to overreach. Any temporary measures they impose have a disturbing habit of entrenching themselves into the landscape and creating a 'new normal' well after the crisis has passed. Paying close attention to civil rights, therefore, becomes critical, not to impede the government's efforts, but to ensure that rights - fragile at the best of times, and particularly vulnerable in a crisis - are not permanently effaced.
The state's most significant responses to the pandemic have been predicated on an invasive use of technology, that seeks to utilise people's personal health data. Broadly, technology has been invoked at three levels. First, in creating a list of persons suspected to be infected with COVID-19; second, in deploying geo-fencing and drone imagery to monitor compliance by quarantined individuals; and third, through the use of contact-tracing smartphone applications, such as Aarogya Setu.
Each of these measures has induced a miasma of despair. In creating a list of infected persons, State governments have channeled the Epidemic Diseases Act of 1897. But this law scarcely accords the state power to publicize this information. What's more, these lists have also generated substantial second-order harms. As the director of the All India Institute of Medical Science, Dr. Randeep Guleria, pointed out, the stigma attached to the disease has led to an increase in morbidity and mortality rates, since many with COVID-19 or flu-like symptoms have refused to go to hospitals. The use of geo-fencing and drone technologies is similarly unsanctioned.
Most concerning amongst the measures invoked is the use of contact-tracing applications that promise to provide users a deep insight into the movements of a COVID-19 carrier. The purported aim here is to ensure that a person who comes into contact with a carrier can quarantine herself. Although the efficacy of applications such as these have been questioned by early adopters, such as Singapore, the Union government has made Aarogya Setu, its contact-tracing application, its signal response to the pandemic.
Thus far, details of the application's technical architecture and its source code have not been made public. The programme also shares worrying parallels with the Aadhaar project in that its institution is not backed by legislation. Like Aadhaar it increasingly seems that the application will be used as an object of coercion. There have already been reports of employees of both private and public institutions being compelled to download the application. But without a statutory framework, and in the absence of a data protection law, the application's reach is boundless. One shudders to think how the huge tranches of personal data that it will collect will be deployed.
The Supreme Court's judgment in K.S. Puttaswamy v. Union of India (2017) is renowned for its incantation, that each of us is guaranteed a fundamental right to privacy. To be sure, the right to privacy is not absolute. However, any such restriction, as the Court held in Puttaswamy, must be tested against the requirements of legality, necessity and the doctrine of proportionality. This will require government to show us, first, that the restriction is sanctioned by legislation; second, that the restriction made is in pursuance of a legitimate state aim; third, that there exists a rational relationship between the purpose and the restriction made; and fourth, that the State has chosen the "least restrictive" measure available to achieve its objective.
In this case, not only are the government's technological solutions unfounded in legislation, there is also little to suggest that they represent the least restrictive measures available. A pandemic cannot be a pretext to abnegate the Constitution.