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Aarogya Setu – A New Illusion of Protection!

Introduction:

Covid-19 has taken countries into its umbrella of death pool where without the vaccine, the certainty of living is merely an illusion. Various measures are taken by different countries to tackle the said situation and among such measure is the use of contact tracing apps. Several countries like South Korea, China, UK, USA, Beijing, Iceland, North Dakota and others are using contact tracing app to bring the situation at the level.

Similarly, India launched “Aarogya Setu” (‘the app’ hereinafter), the contact tracing app to mitigate the dangerous effect of the present pandemic. Our government has also notified the compulsory use of this app irrespective of the public or private barriers, which makes us question the effectiveness, integrity and purpose of such an app in actually preventing the hazard.

From the very launch, the app is facing questions, petitions and critiques concerning its effectiveness and viability. Most petitions enumerate how the said app violates the principles of proportionality, legality and necessity, as laid down in the Puttaswamy judgment. These petitions further summarise how the app is nothing, but just a concern to the privacy, with no legitimacy in the National Disaster Management Act or the Epidemic Act.

Most importantly, these petitions question the creditability of government for absolving its liability in cases of third party breach. However, these petitions fail to include other essential drawbacks. Therefore, the author in the present article has critically analysed the other existing reasons, which can result in the failure of India’s contact tracing app.

Lacking technological infrastructure: Creating inequalities.

It is an undeniable fact that India lacks the technological infrastructure to meet the ends of such an app. Even after judicial pronouncements securing digital literacy and access to technological infrastructure as a fundamental right, practical seeds of such decision are barely visible. The government even introduced policies and missions like National Optical Fibber Network, E-courts Mission Project, Digital India Program, UNDP Access to Justice Project and others to provide high-quality digital access to remote parts and villages. Still, the entrenched feature of corruption has not opened any gates for seeking justice.

According to the working structure of the app, it essentially requires (1) To be downloaded on a suitable phone; and (2) A user needs to switch on the GPS and Bluetooth all times. These essentials point out, that the efficiency of the app depends on the maximization of its use. However, the majority of our citizens don’t have the resource, financial stability and availability of suitable mobile phones to follow such regulation. Also, if the total urban population uses the app and the rural people are left out, it would only create centres of danger with increased health risk to the community not using the said app. Furthermore, even if we believe that rural people have access to compatible phones, what about the central element of the Internet?

In India, the right to internet is not free and is available to only a rich few. Whereas, the major part of our country consists of the population who falls below the poverty line.  Even though our constitution fulfils the aim of article 19 of the Universal Declaration of Human Rights and provides the right to internet as a guaranteed fundamental part under article 19(1)(g). Existence of such right is hardly visible.

In the most cherished case of Maneka Gandhi v. Union of India, the court emphasized that internet is a limitless phenomenon to gather, transmit and receive information. It is the Internet that brings unlimited opportunities, whereas, such an opportunity is taken away due to the socio-economic status of an individual in our country.

A pure example of such discrimination is the denial of 4G internet access in Jammu & Kashmir. Similarly, in many regions, the internet is not accessible due to the government policy, geographical barriers or embedded corruption. That ostracising specific communities from seeking benefits of an app which assures excellent health protection is unreasonable, arbitrary and ineffective.

In India, a significant community is engaged in daily wage or dependent on agriculture to meet their basic needs. This situation is also hampered by the recessionary conditions of Covid-19. Therefore, the right to access the internet remains a desire. Hence, the government’s presumption of accessibility to the internet at all times, for all population is arbitrary. Negating the participation of groups that are more likely to get affected, creates more vulnerability of health hazards.

Stimulating Communalism: Creating Inequalities.

The app by way of false positives has the potential to promote communalisation. The app lacks significant privacy concerns, robust firewall system and governmental liability in cases of third-party intervention. That such data maximization without proper legislation goes against the proportionality principle of Puttaswamy and is nothing, but an overreaching executive action.

Due to no-host validation, any user has the authority to get multiple data of any location or any individual, without any restriction. First, as the app uses GPS for tracking location, a high chances of an inaccurate location of a positive user is a possibility owing to the dense population. That such an inaccurate location can give rise to false positives.

Secondly, due to the social stigma attached to Covid-19 positives, there exists a high chance where such false positives have to face violence, ill-human treatment or even disintegration from society. Furthermore, in India, as most of the political agendas are religiously motivated, this system could be easily used to create communal violence, and the best example to replicate such agendas is of #coronajihad. These religious minorities already face extreme discrimination ranging from the matters of rights to seeking justice and such political agendas could further increase the subsisting discrimination.

Another feature of the app which can further affect the mental makeup of an individual is the “single tracker technology”. By virtue of this feature, all information of a positive user could be forwarded to one’s contact. This obtained information could also be forwarded to all those who have been within infectable distance.  Therefore, such forwards which include fake positives can lead to social boycott, as society victimise the Covid-19 positives.

Even though such victimization stands against our fundamental rights, no legitimate protection is provided by the government to end such irregularities. Thus, the regulatory failure to provide required protection has resulted in the sufferings of migrant labourers, sanitary workers and religious minorities. In contrast, the government is launching apps which instead of protecting such groups is providing a platform for political motives to be advanced.

Most importantly, lack of governmental intervention can create a sense of fear and agitation among people. Such agitation eventually results in non-adoption, refusal from testing or hiding due to the social stigma which is attached to the disease.  The technological discrepancies of the app make people suffer on account of their socioeconomic status and their inability to come out of poverty. Hence, creates more issues than solving one.

Despite the less intrusive alternatives, our government has chosen a more intrusive platform for securing health. Unlike other countries, India’s contact tracing app is being used for ensuring lockdown than health protection.

Whereas, in the Maneka Gandhi case, it was stated by the judiciary that the government must take due cognizance to features, attributes, necessity and legitimacy of an app in curing the urgent condition. Similarly, the same should not be arbitrary in terms of equality to any group or individual depending on their cultural, religious, socioeconomic identity. However, this app has the power to generate potential abuse towards a particular religious, linguistic, socially or economically backward identities. Therefore, is arbitrary and create inequalities.

In India, the main reason behind disintegration is the lack of knowledge and the presence of customary myths. Due to these myths, people attach Covid-19 with religion, ethnicity and economic vulnerability. The lack of privacy protections can easily allow a broad spread of information about an affected user, which is vulnerable to the living of an individual and his or her family.

Conclusion:

The app promotes communalisation, disintegration, political agendas, mental suffering and advances extreme repercussions to people on account of their financial inability. Thus, is more against public interest than protecting it. Furthermore, the efficiency of the app depends on the availability of the internet, leading to one more factor of differentiation. It objects to the right of free movement and is a potential threat to our fundamental rights. With no privacy protection, weak security system and no liability in terms of data protection, the efficiency of the app in mitigating pandemic remains an unexplanatory question.

Even though contact tracing apps are beneficial in terms of tackling pandemic, but due to the cultural, ethnic and different socioeconomic diversity, contact tracing app fails to be efficient in our country. Therefore, there is a need for an app that takes care of privacy protection, fundamental rights, reasonableness, legitimacy and favours the public interest. Like other countries, the main motive of the app should be the maximization of health protection and should not be used for assuring lockdown measures.

This article has been written by Deepti Shinde, 4th year law student from National Law University Jodhpur.

Also Read – ‘Fake’ or ‘Fact’ – An Information Disorder

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