By Rahul Narayan

To what extent should one be bothered by privacy violations while much of the world seems to be under an existential threat? The answer is quite a lot, actually — same as at any other time. Fundamental rights and freedoms are not the icing on the cake to be unceremoniously discarded when you wish to reduce your sugar intake. They are the warm jacket that takes up room in your cupboard which you may really need only twice a year, but it may save your life on those two days.

Why fundamental rights remain immutable

There are two reasons for being extra mindful of your rights in “interesting times”, as the famous Chinese curse goes. First, of course, as Lord Atkin said in his famous dissent in the wartime case of Liversidge v. Anderson, 1942 AC 206:

“In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law. In this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I.” [emphasis mine]

As a matter of historical record, the greatest danger to freedom does not come from an unlawful usurper who seizes the thrown in TV soap opera villain mien, but as Lord Sumption put it recently in an interview with the Spectator, “The real problem is that when human societies lose their freedom, it’s not usually because tyrants have taken it away. It’s usually because people willingly surrender their freedom in return for protection against some external threat. And the threat is usually a real threat but usually exaggerated.”

The Roman republic ended when Octavian was given extraordinary powers by the senate tired of interminable civil war. In Star Wars, Palpatine was given extraordinary powers to deal with the clone wars and soon crowned himself emperor. The Reichstag Fire Decree and the Enabling Act did much the same for Hitler. Now that Orban has got the power to rule by decree in Hungary, let’s see for how long Hungary can sustain itself even as an “illiberal democracy” before devolving into a seedy dictatorship. Notice a pattern?

The second reason is more subtle but just as powerful. In Gone with the Wind, Scarlett O’Hara said to Rhett Butler,

“I’ve felt that I was trying to row a heavily loaded boat in a storm. I’ve had so much trouble just trying to keep afloat that I couldn’t be bothered about things that didn’t matter, things I could part with easily and not miss, like good manners and- well things like that. I’ve been too afraid my boat would be swamped and so I’ve dumped overboard the things that seemed least important.”

“Pride and honor and truth and virtue and kindliness,” he enumerated silkily …

“… There is a time for all things. When I’ve got plenty of money, I’ll be nice as you please, too. Butter won’t melt in my mouth. I can afford to be then.”

“You can afford to be — but you won’t. It’s hard to salvage jettisoned cargo and, if it is retrieved, it’s usually irreparably damaged. And I fear that when you can afford to fish up the honor and virtue and kindness you’ve thrown overboard, you’ll find they have suffered a sea change and not, I fear, into something rich and strange.” [emphases mine]

I fear that if we jettison the “niceties” such as the rule of law and privacy to concentrate on keeping the boat afloat, when we can afford to fish them up, they may have suffered a sea change and not something rich and strange. Countries and political systems work on norms and on trust. Once principles are sacrificed on the altar of expediency they will be again, and again till they remain merely theoretical and without normative value.

Lawful and proportionate restrictions on Privacy and Liberty are not extra cargo

There is no binary choice between order and liberty in our system of ordered liberty. If circumstances require liberty to be curtailed, the question that needs to be always asked is whether the restrictions imposed are lawful and whether they are proportional to the threat because of which liberty is being curtailed. In fact, this is precisely the test the Supreme Court lay down in Puttaswamy (the privacy case) in 2017.

Sadly, our public policies certainly do not incorporate “privacy by design” as the current crisis makes amply clear. Two examples show this.

First, quarantine notices have been stuck outside the houses of those placed under quarantine. Such notices contain the names of the persons who are quarantined. Photographs of many such notices have been shared widely on social media, usually with captions to avoid all social contact with them and are readily in public domain. There are also lists prepared of all those who have been quarantined that are making the rounds on social media with similar dire warnings. Alleged violators of the national lockdown are named and shamed in the media.

Consider the impact of this on people who are under quarantine. One, their names and addresses are all over social media, and could lead to doxxing in its most pernicious form. Two, their medical history is in public record, likely forever. Three, considering the general atmosphere of paranoia where Air India cabin crew have been ostracised for flying in Indians from the epidemic hotspot and health care workers are being evicted from their rented accommodation, the fact that many such people will face social ostracism for some time to come cannot be ruled out. How will such people get deliveries of essentials to their homes? How will they be protected from vigilantes?

They may as well as tattoo themselves with “mera baap quarantined hai” à la Amitabh Bachhan in Deewar or wear a massive scarlet letter like Nathanial Hawthorne describes in the eponymous novel.

If there was no epidemic, there is no doubt that such acts would be serious breaches of privacy and ought to result in massive damages for the perpetrators. Are things different now? There is a mandate in Section 24 of the National Disaster Management Act, 2005, to restrict movement of affected persons but there does not seem to be anything mandating or permitting the names of the affected to be placed in public domain. There is permission to segregate the affected under Section 2(2)(b) of the Epidemics Act, but this too is silent on public naming of them. I don’t think such a requirement can be said to flow from any of these provisions.

Even otherwise, is the naming and shaming of the quarantined necessary and proportional to contain the disease or could some lesser restrictive means be found for ensuring the public purpose of isolation of the virus is met? To ask the question is to answer it — of course not. Put a notice outside the houses of the quarantined by all means but there is no need to mention the names of those who are quarantined. Also, there is no need to announce or make public a list of such addresses. People in Pitampura need to know not to go into house no. 12 or 15 which has quarantined people. And they can get this information when walking to those houses they see the quarantine notices to keep out. Why put this information online when it does not concern people who live in different neighbourhoods or cities or countries?

The way to stop quarantined persons from venturing out is to lay down a protocol under which there is some system of essential supplies going to them. Involve the beat constable in keeping a check on such homes to ensure compliance with quarantine conditions. Maybe issue different passes to those, within the quarantined house, who are permitted to venture out, if at all. The neighbours ought to have no role in this and should respect their privacy. WhatsApp vigilantes are completely uncalled for.

There is absolutely no need for any “list” except one prepared by the local authority for the doctor, and the beat constable only and which should remain strictly confidential otherwise.  Yes, the union government does need the identity of the person in order to do contact tracing, but there is no reason to retain this information once the tracing is done. After this, the only purpose the information would serve is to plan for the epidemic better, but this would only need anonymised data. It isn’t necessary for the union government to know that the quarantined person lives at no. 15, Pitampura once the quarantine is in place. There is no reason for making such lists of personal information public and every reason in fact not to.

The notices and the confidential lists should be updated all the time to ensure that no one is under the scanner for longer than necessary, and old data is deleted and destroyed. If you show no symptoms 3 months after landing from Rome, then your name or address ought not to attract any attention.

Measures such as this would ensure the disease is not spread and no one is exposed to judgment or danger from vigilantes. And they don’t require massive amounts of planning or expenditure to think through — just the simple, humane thought that those under quarantine are already under unbelievable stress and they don’t deserve the added threat of doxxing and vigilantism.

A second measure imposed by the Government of Karnataka is even more horrifying. Each quarantined person is required to send a selfie on a quarantine app to the government every hour between 7 am to 10 pm so that the government can see if they are violating their quarantine conditions. The app would somehow get location coordinates from such selfies and would thus confirm that the subject is not in violation of their quarantine conditions.

I think it’s safe to assume that no law mandates or even suggests this is possible. Even if there were such a law, it would likely collapse under judicial scrutiny more quickly than the house built by the first little piggy when the big bad wolf huffed and puffed. In the 1960s, such a surveillance mechanism was struck down for prisoners in Kharak Singh’s case (1964), based in part on Semayne’s case (1604) which was the foundation for the maxim that every man’s home was his castle.

Is it possible to have a measure that is lesser restrictive of privacy and liberty to ensure quarantine rules are followed? Yes. In fact, I literally cannot think of a measure more destructive to liberty and privacy than these hourly photographs  that does not involve hourly inspection by beat cops in person. Surely, we can do better than this. We do not need to assume that everyone under quarantine is dying to break it in order to infect the public at large. The quarantined are not high-risk criminals.

I do not mean to minimise the difficulties of public authorities in dealing with an existential threat to the nation. Nor am I unaware of the dangers that would befall if the contagion spreads. I know that we are crossing the river by feeling the stones, as indeed are all other countries. This is a black swan event. There are no rules on how to behave in a situation like this.  Every cliché to point out that we are flying blind, I completely agree with.

All that I wish to point out is that the very purpose of fundamental rights is that the ends do not justify the means. The measures we undertake to ensure that the contagion does not spread should be humane, in keeping with human dignity which includes respect for privacy. We must keep our boat afloat without ejecting fundamental rights like excess baggage. Money in the end did not give Scarlett O’Hara joy and she did come to regret jettisoning pride and honour and kindness. However, she had an indomitable nature and could get by with her old charm “tomorrow is another day”. Would it be that democracy and freedom were as indomitable! If we jettison our fundamental rights today, we don’t have the luxury of saying that tomorrow is another day.

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Rahul Narayan is an Advocate-on-Record in the Supreme Court of India. He has appeared in matters involving the right to privacy, access to internet, intermediary liability and digital rights. He also advises companies and institutions on issues relating to compliance with technology law, and cyber frauds. He can be reached at Rahulnarayan@lawfirst.in.

Edited by Aditi Agrawal