By: Navya Bhandari and Ayush Mehta
“No system of mass surveillance has existed in any society, that we know of to this point, that has not been abused.”
– Edward Snowden
INTRODUCTION
In times where the country is in a state of lockdown, the Government launched the Aarogya Setu Application ( hereinafter the “App”) in order to ensure coverage of the citizens’ health status. The application requires citizens to fill out personal details and includes constant geolocation tracking. However, the application finds itself in muddy waters due to concerns over infringement of the right to privacy. The nature of the data collected through the application is sensitive and the application is susceptible to hacking as evidenced by hacker Elliot Anderson. Thus, fostering concerns over data privacy breach.
The Centre has made downloading the application mandatory for all the government employees, people seeking air/rail travel, product delivery employees, and now, it has been made a condition for getting bail. What needs to be deliberated upon is whether the State has the right to impose such a condition when the legality of the application is itself in question. It is not backed by any law, ordinance or regulation, which leads to the contention that the application fails to comply with the legality standard laid down in K.S. Puttaswamy and that the application in the present form is violative of the right to privacy.
Even though the State under section 10 of the Disaster Management Act is allowed to collect data in order to take necessary measures for prevention of disasters in absence of a specific legislation, the mandatory imposition of the application is suspected to sound legal reasoning to justify surveillance of the citizens. This article would delve into the Jharkhand High Court’s order regarding the grant of bail on the mandatory condition that the accused shall, inter alia, download the App.
ARE THE JUDICIAL ORDERS WHICH MAKE INSTALLATION OF THE APPLICATION MANDATORY TO EXERCISE LEGAL RIGHTS ‘CONSTITUTIONAL’?
The right to bail of a prisoner is given in furtherance of the concept of ‘innocent until proven guilty’ and the right to freedom of movement under Article 19. As mentioned above, the Jharkhand HC imposed a rather odd condition for granting bail to an accused. The court mandated the accused to download the App as a condition to attain bail. What needs to be considered is whether this condition is in consonance to the procedure laid down in the Code of Criminal Procedure, 1973 (hereinafter the “Code”).
Under section 436 of the Code, every accused has the right to bail subject to the conditions laid down in section 437. Section 437(3) provides the conditions that shall be imposed by the Magistrate’s Court while releasing accused on bail which are:
(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter or; (b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected or; (c) otherwise in the interests of justice, any such condition as it considers necessary.
Further while reading section 439 in conjunction with Sec. 437(3) of the Code, the Sessions and High Courts are empowered to impose the above-mentioned conditions while granting bail. While understanding the ambit of the words ‘any condition’, the Supreme Court in the case of Sumit Mehta v State of NCT Delhi observed that:
The words ‘any condition’ used in the provision should not be regarded as conferring absolute power on a Court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance and effective in the pragmatic sense and should not defeat the order of grant of bail.
In Hazarilal v Rameshwar Prasad, the court held that an accused cannot be subjected to any condition which is unfair and not pragmatic. The onus is on the courts to ensure that the conditions imposed on the accused are in consonance with the intendment and the provisions of the code.
The court’s rationale behind the same may be considered as morally correct, however, from a legal standpoint, the condition mandating the accused to download the App is not in consonance with the provisions of the Code and subsequent judicial decisions laid down by the Apex court as the condition does not have a reasonable nexus with the object and the purpose for which bail is granted.
Apart from the legal right to get a bail, which has been violated, the order also violates several fundamental rights, first of which is the Right to Privacy, which includes data protection. Justice B.N. Krishna, chairman of the committee formed to look after the issue of Data Privacy in India, himself doubts the credibility of the App and called the application ‘utterly illegal’.
Though the Indian Constitution is silent on the issue of balancing fundamental rights, the Hon’ble Supreme Court in Kaushal Kishor v State of Uttar Pradesh and time and again has emphasised on balancing them with one another. It is ironic how an institution which is the ‘balancing wheel between the rights’ itself passes imbalanced orders.
On one hand, the right to privacy of under-trial prisoners is being violated by making them install the App, as a prerequisite for getting bail, and on the other hand, the right to health of all other citizens, which is read into Article 21 in the case of Bandhua Mukti Morcha, is being protected by such steps. The protection of one right leads to the violation of another. It is, therefore, the court’s duty to strike a balance between the two. This may be termed as the conflict between the rights of a group vis-a-vis an individual. But, it had been held in A.K Gopalan that the right of a person cannot come at the stake of the right of another.
As seen from the Sabarimala judgement, inter alia, rights of a group do not in any circumstance override an individual’s rights. In fact, it has to be looked into from the perspective of proportionality and reasonableness.
The doctrine of proportionality will also come into play at this juncture. The doctrine of proportionality, adopted in the Indian jurisprudence in Om Kumar envisages that the action taken by the State must be proportional to the purpose for which the power is used. Proportionality stricto sensu, as laid down in Modern Dental College case, clearly states:
a limitation of a constitutional right will be constitutionally permissible if: (i) it is designated for a proper purpose; (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfillment of that purpose; (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally (iv) there needs to be a proper relation (‘proportionality stricto sensu’ or ‘balancing’) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.
Such a rule is also violative of Article 19 as there is an infringement on the freedom of movement of those under-trials, who are being denied the same just because they disagree to sacrifice their right to privacy. As the right to privacy has been guaranteed as a fundamental right in K.S. Puttaswamy, an action abridging a fundamental right cannot be proportional if its purpose is to ensure wide adoption of the App and to track if the prisoner goes near an infected person, in a scenario where every infected person does not even have the application, given the limitations of the application to run only on a smartphone. Therefore, even installing the application neither guarantees the under-trial that he will be informed of the infection contact nor ensures the right to health to other citizens.
The Supreme Court in K.S. Puttaswamy, laid down the following criteria to restrict a fundamental right: “(i) The action must be sanctioned by law; (ii) The proposed action must be necessary in a democratic society for a legitimate aim; (iii) The extent of such interference must be proportionate to the need for such interference; (iv) There must be procedural guarantees against abuse of such interference.” While the aim behind the mandatory imposition is legitimate, the aforesaid action is not sanctioned by law, the interference is not proportionate, and there are no procedural guarantees to protect the abuse.
In this regard, it is important to note that the right to privacy under Article 21 cannot be abridged except by the procedure established by law and the App is certainly not a procedure established by law.
Another angle of right to equality also has its own gaps. In E.P. Royappa, it was held that reasonable classification is allowed under Article 14 only if there is an intelligible differentia, having a reasonable nexus with the object it seeks to achieve. The classification must not be ‘arbitrary, artificial or evasive‘ as held in Maneka Gandhi. By making it mandatory for some class of people to download the application, the government, as well as the judiciary, has made a classification, based on jobs (government and non-government), travelling status (travelling by trains or not travelling) and on the fact if you’re an under-trial or not.
The classification based on under-trials is extremely arbitrary (though others also are, but since we’re focusing on bail). The classification has no nexus, forget ‘reasonable’ with the purpose it seeks to achieve. The aim of this classification is primarily to make people use the App, by making it a compulsion for under-trials to use it. However, this object has no relation to the classification. It is highly arbitrary, artificial and evasive, and there is no real nexus, thus, making it unconstitutional.
The question whether the State can force citizens to give away a fundamental right for availing a government benefit, which is availed as a matter of right, should, therefore, be answered in negative, as it is violative of the Constitution at various levels. The State in no situation can undertake unproportionate and unreasonable acts which ‘force’ the citizens to give away a fundamental right to obtain other rights. The Supreme Court in a recent case of Kaushal Kishor v State Of Uttar Pradesh has opined that the Constitution will lose its importance if the Fundamental Rights are not protected. Therefore, the recent Jharkhand HC order for giving bail only on such a condition which infringes right to privacy is highly hypocritical.
CONCLUSION
Though the concept of the App is a novel initiative by the Indian government, in furtherance with its aim of Digital India, it failed to meet the privacy standards, as alleged by the ethical hacker. However, the same was denied by the Indian government stating that the data was safe.
Another concern about the initiative is about the ‘mandatory’ use of the application to avail certain government benefits like bails and rail transportation. What is questioned is the legitimacy of such an action because the same lacks legal backing. Part III of the Indian Constitution requires that for an action to be justifying a fundamental right violation, it must have a legal backing, which is absent for the App.
As held in the Aadhar judgement, “if the State preserves the anonymity of the individual it could legitimately assert a valid state interest in the preservation of public health to design appropriate policy interventions on the basis of the data available to it.” Therefore, the State must address the concerns regarding hacking to be able to make the application legitimate.
Therefore, one alternative to get out of the problem of violation of the right to privacy will be to give enforcement to such actions by law. The government cannot make its services available to people at the cost of their privacy without any legislation which allows the same, which will again be subject to Judicial Review. Further, for such a law to be intra vires the constitution, the government will have to address the data protection concerns too. In toto, even if legislation is implemented, it will still have to pass the test of proportionality and reasonableness for being a procedure established by law.
(Navya and Ayush are currently law undergraduates at National Law University, Jodhpur. They may be contacted here and here, respectively.)
Cite as: Navya Bhandari and Ayush Mehta, ‘Whether the State Can Force Citizens to Give Up their Rights in Exchange for Government Benefits? An Analysis in Light of Aarogya Setu Being Made Mandatory for Getting Bail’ (The RMLNLU Law Review Blog, 05 June 2020) <https://rmlnlulawreview.wordpress.com/2020/06/05/whether-the-state-can-force-citizens-to-give-up-their-rights-in-exchange-for-government-benefits-an-analysis-in-light-of-aarogya-setu-being-made-mandatory-for-getting-bail > date of access.
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