Utilitarian And libertarian Perspective Regarding Arogya Setu App
Due to the COVID – 19 pandemic, governments across the world have had to take strict measures. The Indian government has also imposed a nationwide lockdown and like other governments it is using technology for contact tracing through an app called Aarogya Setu.
Tracking movements of a person through his or her mobile phone is highly intrusive and violates several privacy and data interests. However, effective contact tracing measures have proven to be the key to check the spread of the virus. Analyze in reference to utilitarian and libertarian perspectives. Along with Right to Privacy
Introduction
The coronavirus outbreak is first and foremost a human tragedy, affecting hundreds of thousands of people and global economy. This outbreak has also brought considerable major disruption and leads to adverse implications.[1] The World Health Organization has declared the coronavirus a pandemic on March 11, 2020, as confirmed cases of the disease exceed 120,000 people (with 4,300 deaths) in more than 100 countries.[2]
In addition to the human cost, uncertainty about the speed of the spread has roiled financial markets, weighed on business and projects across industries and sectors, and looks set to take a significant bite out of global GDP growth. So, the coronavirus is affecting everything from travel to sporting events to college class attendance to work environments.
To combat this pandemic Aarogya Setu App that is India's main contact tracing technology is fromulated. It is a software which has been formulated by Indian government , National Information Commission of India in the raising situation of Coronavirus pandemic to connect the citizen of India with various health services.[3]
The main moto for creation of this Arogya setu app is to put up a combined fight against Coronavirus by enlarging government initiative in reaching out to and informing the users regarding risks, best practices and advisories to contain the spread of Coronavirus.[4]many other nations like South Korea, China, and European Countries are also using or are in the process of building their own coronavirus contact tracing software.
Aarogya Setu application is formulated to keep track of other people who are using the app and came into contact with the other person having coronavirus. And then this application/ software alerts the users of the application about their contact with that positive user.[5] this application needs the consent of the person who is using this application for, accessing the location of user and for access of Bluetooth along with some other personal details of the user.
This application uses to monitor and save the details of another user as to detect nearby user of the app via Bluetooth. This application further tracks the current location of user by using GPS details of the device and records it within the interval of fifteen minutes.[6] This application also saves the record in the phone till the time any user tests +ve or declares any symptom of corona virus in a self-assessment survey provided in the app. In that case this app record and upload this detail to the server Thus, it acts as a one-stop solution for spreading awareness about coronavirus, helping self-diagnose users, providing the latest updates and even to store and display e-pass.[7]
While the government insists the app is an important tool in its fight against coronavirus, it has raised concerns over personal privacy, absence of legislative sanction and other issues.[8] The Issues regarding about the storing and keeping the personal data of a user generated by the Arogya setu app. It also violates a fundamental right of privacy which can only be deprived in accordance with procedure established by the law. There is no act passed by the parliament, which authorizes making this app mandatory.[9]
Touted as a voluntary app, the government has steadily pushed for mandatory usage of the service. In the May 1 order extending the lockdown until May 17, the government has mandated 100% coverage of the Aarogya Setu app within containment zones and for both public- and private-sector employees, making the heads of private organizations liable for non-compliance.[10] This is a dramatic and potentially unconstitutional shift from voluntary to mandatory. Valid arguments maybe made that during a pandemic, emergency measures like mandatory usage of an app might be in the public interest. But there are legal and practical challenges to this line of argument that must be considered.
There has also other concerns like use of location data via GPS trails deviates from privacy-focused global standards, risks of misidentification or a false-positive, no transparency regarding data assessment and many more.[11] Thus, the disclosed purpose for the app is also very vague and currently, there is no legal framework that governs the Arogya Setu app, beyond the privacy policy and terms of use.
Hence it can be said that the Arogya Setu app has numerous benefits but also subject to various limitations that is although it proves to be an effective tool to check the spread of the virus but due to its tracing of movement feature it also raises concerns regarding privacy and data. With reference to this statement utilitarian and libertarian perspective has been discussed regarding Arogya Setu app. Utilitarian main approach is to promote and secure the greatest good for the greatest number where as libertarian foundation lies upon priority of minimal government combined with optimum possible individual liberty
Statement Of Problem
Due to the COVID – 19 pandemic, governments across the world have had to take strict measures. The Indian government has also imposed a nationwide lockdown and like other governments it is using technology for contact tracing through an app called Aarogya Setu. Tracking movements of a person through his or her mobile phone is highly intrusive and violates several privacy and data interests. However, effective contact tracing measures have proven to be the key to check the spread of the virus. Analyzing the same in reference to utilitarian and libertarian perspectives.
Objectives Of Study
The objective of this study is to analyzing the violation of privacy of individual as Arogya setu application uses and track movements of a person, with respect to utilitarian and libertarian perspective. The purpose of this study is to understand utilitarian and libertarian perspectives in that regard. and to analyses the above with constitutional validity of Arogya setu application. And the legality of Arogya setu application with any law time being in force.
Significance Of Study
This study’s findings will help to understand the libertarian and utilitarian perspective behind the implementation or formulation Aarogya setu application as it involves question of privacy of an individual person. Both perspective (libertarian and utilitarian) has their own concepts of privacy which are opposite to each other and this study will help in understanding the jurisprudential essence of concept of privacy.
And to draw balance between to perspective as the current policy with regards to Arogya Setu App has been formulated by the government to combat the current situation of pandemic COVID-19. The policy has constituted on the principle of utility as its main aim is the welfare of public at large as it is not possible to conduct manual survey to carry out contact tracing of corona virus by keeping in view the population of India. The foundation on which app is formed is basis of shared interest to fight against the current situation.
Research Methodology
The research methodology that has been adopted by the researcher in the title paper is a DOCTRINAL METHODOLOGY. Internet and the data available in the E-library of Himachal Pradesh National Law is main source of procuring the research material. The main reliance is put upon the secondary data like books, scholars’ articles, journals, newspaper, are referred.
Libertarian Perspective
Libertarianism is a political philosophy that takes individual liberty to be the primary political value. Libertarianism includes a broad spectrum of political philosophies, each sharing the common overall priority of minimal government combined with optimum possible individual liberty.[12] It seeks to define and justify the legitimate powers of government in terms of certain individual rights. It prioritizes freedom and promotes personal responsibility as opposed to the provision of welfare services by the state, and also rejects the compulsions of Socialism and Communism.[13] The rise of liberalism resulted in rapid technological development and a general increase in living standards.
As the roots of libertarianism can be traced back to the 18th and 19th centuries. There has been a lot of writings of philosophers on this view such as John Locke, Robert Nozick, Murray Rothbard, Milton Friedman and F.A. Hayek and many more. But all the writings are based on the common foundation of individual liberty to promote peace and harmony.
Libertarianism is the belief in liberty.
It is set of ideas which advocates the maximization of an individual’s thinking and living by abolishing or minimizing the power of the state.[14] It believes in a world that is free, peaceful and abundant. So, it wants to take control of their own lives without taking into consideration other ideas. Libertarians believe that each individual has his own life and that he has a freedom to choose and live his life. This view of "natural rights" derives from the early writings of Thomas Hobbes and John Locke.[15] Hence, their goal is to bring liberty into the world. They also oppose every kind of unequal treatment such as racism, discrimination, etc.
They are more concerned with the notion of a society that allows individuals to enjoy political and economic liberty, which they see as the foundation for human happiness and prosperity.[16] They argue that individual liberty leads to economic efficiency and other benefits, and is thus the most
effective means of promoting or enhancing social welfare.[17] Milton Friedman, Ludwig von Mises, and Friedrich Hayek are major proponents of this view.
The central issue for libertarianism is the proper nature and justification of the state. Libertarians view the state with great suspicion and are particularly opposed to its attempts to supervise and control people’s lives, or to carry out policies in the name of social justice.[18]
At the same time, they assign to individual strong rights to non-interference and reject the ’collectivist’ idea that people can justly be coerced into carrying out society’s goals or purposes. However, in most versions of the theory it is recognized that some central authority that is a minimal state is required to protect citizens from each other and from the intrusions of other states.
In the twentieth century, welfare state liberalism, or social democracy, emerged as the dominant form of liberalism, and the term liberalism itself underwent a significant change in definition.[19] Most self-described liberals no longer supported completely free markets and minimal government, though they continued to champion other individual rights, such as the right to freedom of speech.
There has been shift in approach as the new liberalism was exemplified by the English philosophers L.T. Hobhouse and T.H. Green, who argued that democratic governments should aim to advance the general welfare by providing direct services and benefits to citizens.[20] Meanwhile, however, classical liberals such as the English philosopher Herbert Spencer insisted that the welfare of the poor and the middle classes would be best served by free markets and minimal government.[21] But the main foundation remains same with slight difference on some points. Thus, a policy of limiting government, respecting individual liberty, and encouraging markets, will remain to be regarded as essential elements of this theory.
The main elements of libertarianism and their perspective on Arogya Setu has discussed further.
Concept Of Liberty
Liberty is a political concept that means to be free from undue or oppressive restraints on a person's
actions, thoughts or beliefs imposed by the State.[22] A person with liberty possesses certain social, political and economic rights protected from improper private and public interference.
Liberty is different from freedom. Freedom is, in its purist form, unrestrained action. Liberty is more restrained. For example, while Harry has the liberty of movement, he does not have the liberty to move his fist into someone's face. Liberty can be understood as non-interference and is the only thing that can be legitimately demanded of others as a matter of legal or political right.[23]
The foundation of libertarianism is liberty. The individual should be free to make his or her own choices according to his or her own desires, as long as those choices don't infringe on the rights of others. They contend that the scope and powers of government should be constrained so as to allow each individual as much freedom of action as is consistent with a like freedom for everyone else.[24]
As a result, libertarians endorse strong rights to individual liberty and private property; defend civil liberties like equal rights for homosexuals; endorse drug decriminalization, open borders, and oppose most military interventions.[25]
Hence, they give central importance in respecting individual rights but the application regarding the current pandemic has not respected the right of individuals and many concerns regarding privacy rights and liberty has been raised. Using of GPS and Bluetooth to locate data has been hindering the individuals freedom as one can easily locate other using this app.[26]
The reports also highlight that algorithm based predictive models to determine positive patients deviates the technology of contact tracing from its real work and has a material impact on individual’s civil liberties.[27]
Principle Of Non–Aggression Axiom
According to the principle that libertarians call the nonaggression axiom, all acts of aggression against the rights of others whether committed by individuals or by governments are unjust.[28] One of the instance of this aggression can be traced in current application as government uses aggressive adoption. Initially the government make this application mandatory for every individual and all need to install it in their phone.[29]
Companies, individuals, societies and shops are told to make the use of this app compulsory for its employees. This mandatory approach falls under the realm of this aggression by the government as no one can force other to do something which he or she not wants to do for the sake of some unforeseen improvement or benefit for other. Thus, according to this principle the application is unjust as it uses some kind of aggression to make individual comply with the policy framework.
Concept Individualism And Rights Of Individuals
Libertarians see the individual as the basic unit of social analysis. Only individuals make choices and are responsible for their actions. Libertarian thought emphasizes the dignity of each individual, which entails both rights and responsibility.[30] The progressive extension of dignity to more people, women, to people of different religions and different races is one of the great libertarian triumphs. Libertarians embrace individualism and they attach supreme value to the rights and freedoms of individuals.
They have a right to be secure in their life, liberty, and property. These rights are not granted by government or by society and are inherent in the nature of human beings.[31] It is intuitively right that individuals enjoy the security of such rights and the burden of explanation should lie with those who would take rights away. Another aspect of the individualism of
libertarians are of view that an individual, rather than the group or the state, is the basic unit in terms of which a legal order must be understood.[32] It also insists on the status of individuals as morally free and equal, something it interprets as implying a strong requirement of individual’s sovereignty and believes that a respect for this status requires treating people as right-holders, including as holders of rights in property.[33]
If we applied the same principle on current situation of application, it can be said that the application has not considered the element of individualism. Due to its silence on data retention and storage of personal information generated on the app, it has not proven successful to adhere the principle of individualism. If users have no control over their data, it is a complete violation of their right to informational, self-determination and the right to be forgotten. The tracing of movements also restricts people from their right of freedom. No weightage to individual rights has been given under this technology.
For a libertarian an individual’s liberty is restricted only if some person has reduced the options available, and has done so in a way which violates that individual’s rights.[34] Libertarians strongly value individual freedom and see this as justifying strong protections for individual freedom. Thus, libertarians insist that justice poses stringent limits to coercion and assume a ’protected sphere’ of strong personal rights to life and liberty.
Minimal State-Role
Libertarianism is a political philosophy holding that the role of the state in society ought to be severely limited, confined essentially to police protection, national defense, and the administration of courts of law, with all other tasks commonly performed by modern governments that are education, social insurance, welfare, and so forth, taken over by religious bodies, charities, and other private institutions operating in a free market.[35]The theories of Jean-Jacques Rousseau are also directed towards a democracy with maximum liberty and minimal state theory.[36]
Libertarians have a great antipathy to concentrated power, for as Lord Acton said, Power tends to corrupt and absolute power corrupts absolutely.[37] Thus they want to divide and limit power, and that means specially to limit government, generally through a written constitution enumerating and limiting the powers that the people delegate to government. The main role of the govt. as per the view of liberals is to provide protection to these and other rights and further liberals have contended that government power should be limited to that which is necessary to accomplish this task. Thus, Libertarian advocates of a strictly minimal state and favor a smaller or greater role for government.
The only sort of state that can be morally justified is what Nozick calls a minimal state, a government which protects individuals, via police and military forces, from force, fraud, and theft, and administers courts of law, but does nothing else.[38] In particular, such a state cannot regulate and interfere with individual’s rights. The various programs of the modern welfare state are thus immoral.
One of them is current policy of government regarding Arogya Setu, not only because it is inefficient and incompetently administered, but because it gives the state control over its citizens. It gives wide powers in the hand of government as the disclose purpose of the app is vague enough to expand its scope and left individual with no other option rather to comply with the current framework.[39] Hence, it violates the concept of minimal state and also make interference with individual’s rights.
Right To Privacy[40]
The idea of privacy as political virtue came with the gradual emergence of liberal democracy. This idea was strongly taken up by liberalism in its attempt to defend individual from extensive state power and what they called the tyranny of these majority, to the extent that privacy came to form one of the central planks of the liberal ideology.41 Privacy is at the cornerstone of some of our most[41]
liberal values of limited government because it serves as a theoretical underpinning for the rule that we are not, generally, obliged to justify our conduct to the government.
Privacy fosters various number of other values. It’s an enabler of democracy that’s why we keep the ballot private. It can foster personal morality that’s why we keep the confessional private. Privacy is also about restraining government misbehavior, which is why we see privacy values as fundamental right and other procedural limitations on government action.[42]
While the government insists the app is an important tool in its fight against coronavirus, it has raised concerns over privacy. It is contented that this app Arogya setu help as a surveillance tool which allowed or unable the government of India to track down the movements of a person and gathering along with storing the sensitive and personal details of an individual.[43]
It is also observed that any app that tracks who you have been in contact with and your location at all times is a clear violation of privacy. Even according to a database maintained by MIT Technology Review, Aarogya Setu, India’s contact-tracing app to combat COVID-19, poses significant risks to the privacy of the user.[44]
Internet Freedom Foundation are raising alarm over its compliance with the globally-held privacy standards.[45] French hacker Robert Baptiste claimed several privacy issue in the app and warned that the ‘privacy of ninety millions people is at stake’.[46] Hence, it can be said Aarogya Setu is not healthy for a person's privacy. Thus, it violates a fundamental right which can only be deprived in accordance with procedure established by the law.
Effect Of Surveillance On Liberty
The gigantic advancement in technology and its contribution in the spread of surveillance by state actors has been at the root of much debate in the judiciary and academia alike. The possibility of gathering an individual's privileged information by both state and non-state players' employing sophisticated technology is more fact than fiction.[47] Most legal systems fail to wholesomely account for the modernization in technological infringement techniques in their protective measures.
In recent years, technology remove various traditional constraints of surveillance, like limited police resources. However, technology today has empowered the various law enforcement agencies with far greater ability to monitor the daily activities of a large number of people. Surveillance capitalism is the only cause of concern.[48] However, the power imbalance between people and the state, in terms of the concentration of powers in the hands of the state, their monopoly over the law and violence, and the possibilities of misuse, means that we should be even more concerned when the state tries to arrogate greater powers to itself.
In the name of surveillance now the government has been using its power extensively and abruptly. Even like in case of current situation limited liability of the government poses several threats to the individual liberty as there is no proper clarification on the data usage, enforcement issues and legal complexities has been provided.[49]
Hence, it can be said that libertarian views everything from the perspective of individualism and liberty. To justify any social order with their perspective it must develops out of individual liberty. The current application has failed to satisfy these elements as it lags behind to consider individual rights, privacy issues and even their right to freedom.
Utilitarian Perspective
Utilitarianism is one of the best known and most influential moral theories. The theory believes that man is social by nature and is always motivated in life by the desire to obtain happiness and avoid pain and that the happiness of each individual involves relations with other individuals which necessitates state regulation of mutual relations of men by legislation.[50] Utilitarian philosophy is associated with object of the state is to promote and secure the greatest good for the greatest number. But there is an ambiguity in the words greater good. It means happiness or pleasure, not necessarily that it means the right thing or wrong thing. According to Bentham, it only means the tendency to augment or diminish happiness or pleasure.[51]
The Greatest Happiness principle is considered as the foundation of this theory and states that actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness. By happiness is intended pleasure, and the absence of pain; by unhappiness, pain, and the privation of pleasure. Thus, Utilitarianism provides that the most ethical and important choice of a person is that he will produce the great happiness for the great number of people.[52]
For instance, a situation of a trolley car driver. The driver is in speed and heading to the work yard. Suddenly, he realizes the brakes don’t work and see five workers are there on the track who are busy jack hammering and do not see his approach. He as the driver has the ability to determine where the train goes by switching the tracks to another track. However, that track has one worker. So according to this approach the driver should switching the tracks and will save five. Although his actions will kill the lone worker.
It can be described as a teleological theory as it considered consequence as to the determination of the act being moral or not[53] As a result of the consequentialist nature of utilitarianism, the means to get to the end are secondary and the end result is considered foremost significant. According to them pleasure, and freedom from pain, are the only things desirable as ends.[54] They also reject moral codes or systems that consist of taboos or commands based on orders given by leaders or supernatural beings or customs, traditions, rather, utilitarian thought that makes a morality be true or justifiable is its positive contribution.[55]
There are two types of Utilitarianism that is Act Utilitarianism and Rule Utilitarianism.[56] Act Utilitarianism believes that the best action is the one that can give the most happiness. It has no moral rules. It believes that for each individual situation, there is an individual action that is to be justified as best if it is for the greatest happiness. On the other hand, Rule Utilitarianism believes that there is a general act of greatest happiness for each situation.[57] In general, it believes in a set of rules or laws that is perceived to be for the greatest happiness. Furthermore, a Rule Utilitarian will consult the rules instead of acting first.
The seeds of the theory can be found in the hedonists and Epicurus, who viewed happiness as the only good. The most important classical utilitarian’s are Jeremy Bentham and John Stuart Mill. Bentham and Mill who are important theorists and social reformers. Their theory has had a major impact both on philosophical work in moral theory and on approaches to economic, political, and social policy.
Principle Of Utilitiarianism By Jeremy Bentham (1748-1832)
Jeremy Bentham was an English philosopher and political radical. He is primarily known today for his principle of utilitarianism, which evaluates actions based upon their consequences. Bentham developed the principles of utility by defining it as a measure of maximizing pleasure while minimizing pain.[58]According to him everyone prefers pleasure over pain. It is with this belief that utilitarian moral principles are founded. In fact, it exerts a powerful hold on the thinking of policy-makers, economists, business executives, and ordinary citizens to this day.
According to him the highest principle of morality is to maximize happiness, the overall balance of pleasure over pain. The ultimate goal is greatest happiness of the greatest number. So, the right thing to do is whatever will maximize utility.[59] Bentham arrives at his principle by the following line of reasoning: We are all governed by the feelings of pain and pleasure. They are our sovereign masters. They govern us in everything we do and also determine what we ought to do. The standard of right and wrong is fastened to their throne.[60] We all like pleasure and dislike pain. The utilitarian philosophy recognizes this fact, and makes it the basis of moral and political life.
Maximizing utility is a principle not only for individuals but also for legislators. In deciding what laws or policies to enact, a government should do whatever will maximize the happiness of the community as a whole. For instance, the case of Arogya Setu app which is formed to combat COVID-19 through the providing of the information to the users of the application about risk is a good practice to limit the spread of corona virus[61] The purpose of the application suggest that it is based on the principle of utility that is welfare of the public at large. It has considered the greatest good that is to prevent maximum number of the people from this infection and to protect them as much as possible.
Bentham does not recognize individual's human rights and therefore, the idea of justice is merely a subordinate aspect of utility and his principle of justice is an implicit part of utility as incorporated in a legislation.[62] This approach also followed in formation of application where the government does not consider individual rights like data protection, privacy issues, and who can be held liable in contravention. It is further contented that this app work as surveillance tool allow the Indian govt. to track down individual movements.[63]
His approach benefits the majority at the expense of the minority, the minority’s rights may not be taken into account. Bentham’s principles often run contrary to individual’s rights, and at times are the antithesis to concepts of modern justice theories.[64] For instance, when crime reduction policies, such as sex offender registries, allegedly promote community safety, offenders’ rights are ignored due to the loss of privacy. This is especially so, given that studies indicate such registries are often ineffective and do little to protect the community. Bentham has also prorogated absolute
liberty rule even though it hurts the minority group. He came to see that a principle could justify inordinate sacrifices by a minority, however that minority might be composed, in the interest of enhancing the happiness of a majority.[65] The same can be observed in arogya setu app as well. Where the government main aim is to prevent the maximum number of humans from COVID infective person although may cause to harm of few individuals. It has been argued that the Arogya setu is a very effective mode to track to down the spreading of noval corona virus and it is not possible to carry out the survey on contact tracing keeping in view the population of our country[66] So although some issues have been faced, the ultimate public is getting benefits from the app and protecting them.
The fundamental unit of human action for him was utility. Bentham has considered only quantitative approach. Bentham further provide a method of calculating the pain ans pleasure which came to be known as the hedonic calculus. Bentham says that the value of a pleasure or pain, considered by itself, can be measured according to its duration uncertainty intensity and certainty and propinquity/remoteness.[67] It is necessary to measure them on a single scale. The latest example of this approach can be observed in arogya setu, where all the things has been counted on only one parameter that is prevention from COVID-19. The other aspects like data protection, mandatory requirement, liability issues or person information concern has not been considered as significant. The government has considered this app requirement from COVID-19 perspective only as it is necessary to protect the spread among maximum people.[68]
Bentham’s idea of utility offers one such common currency. In addition, it is necessary to consider the tendency of an act by which it is produced and, therefore, to take account of the act's fecundity, or the chance it has of being followed by sensations of the same kind and its purity.[69] Finally, it is necessary to consider the extent, or the number of people affected by the action.
Bentham is concerned about the consequences of the actions, regardless of the action itself. He believes in a consequentialist theory. In consequentialism, actions are judged solely by their consequences, without regard to character, motivation, or any understanding of good and evil and separate from their capacity to create happiness and pleasure. Thus, in utilitarianism, it is a result of actions of determinization as to whether the actions are wrong or right.
Therefore, Bentham emphasizes the consequences or ultimate purpose of an act rather than the character of the actor, means, or the particular circumstances surrounding the act. [70] The current contact tracing app has also followed this view and focus on the ultimate goal that is to prevent the spread of infection. The app through its process may have resulted Into various issues and risks but it has only considered its aim to stop COVID-19 by making people aware of their surroundings. This app has also been proven successful to a some extent in its purpose.[71]
As an additional improvement in the manner in which Bentham conceived the utility principle, he might have included the universal interest, an idea initially stated in Plan of Parliamentary Reform where it appears as a more particular conception of the greatest happiness principle.[72]
The universal interest relates to interests that are shared by everyone, and only when it is impossible for government to contrive policies to achieve this end is a distribution of happiness less than universal or less than equal justified.[73] However, the number of decisions made by governments that are genuinely of universal reach are relatively few and may be limited to national defense and the framework of individual rights (securities). The government recent initiative of the arogya setu app is one of the them which has focused on the overall interest of the country. The app has been formed on the basis of shared interest that is to fight against the current situation.[74] It has considered everyone equally and according to government it is an effective tool for everybody to prevent itself from the harm.
Beyond that, redistributive policies invariably involve unequal sacrifices and benefits. This means that the legislator must employ a utilitarian calculation in which the pain experienced by the few is reduced to the minimum necessary to produce benefits for the many; only on this
pleasures be summed and pains subtracted in order to produce the rationale to justify the best policy.[75] Like in the current app according to government it may have cause certain risks to individuals but the utility experienced by the people is more. It means the happiness and benefit shared by the public at large. The universal interest is the egalitarian commitment that in arriving at the appropriate law or policy the interests of each and all must count, and count equally.[76] This does not mean that optimal utility is not the goal, but simply stresses that optimal utility will be more likely achieved where there is an approximate equality in the distribution of the basic requirements of happiness.
He believes that every moral argument, he claims, must implicitly draw on idea of maximizing happiness. People may say they believe in certain absolute, categorical duties or rights. But they would have no basis for defending these duties or rights unless they believed that respecting them would maximize human happiness.[77] The same in arogya setu app where the issue regarding right to privacy and liberty has been raised. But, the same does not bear any fruit until it is required for the good of larger people. Because according to Bentham the rights have been respected only when it is for utility.
Economy, transparency and accountability were equally important in Bentham’s innovative account of administration, as were devices to ensure the maximization of intellectual, moral, and active aptitude in public officials. In government utilitarian outcomes required various democratic procedures that function as securities against misrule. These procedures include: virtual universal suffrage, annual parliaments, secret ballot, and provisions for transparency, publicity and unconstrained public debate. This aspect has been missing in current application as it lags behind on the issue of transparency, accountability and does not provide details regarding the data usage, risk assessment and the person who will held responsible in case of the any infringement or harm.[78]
Utlititarianism Principle As Foundation Of Moral By - John Stuart Mill (1806-1873)
John Stuart Mill was a follower of Bentham. Its goal is to justify the utilitarian principle as the foundation of morals. This principle says actions are right in proportion as they tend to promote overall human happiness.[79] So, Mill focuses on consequences of actions. The central issue of his theory is the question of the supreme good or ultimate end. His argument is designed to show that the general happiness (the maximum happiness) is the ultimate moral good which is also the basis of formation the current pandemic application.[80] The focus of the application is to achieve maximum good for larger number.
Mill agreed generally with Bentham's doctrine but he slightly modified it and included qualitative pleasure along with quantitative one. The same factor is missing in the arogya setu app as it does not consider public’s individual safety and possible future harms. He also insisted that the utilitarian doctrine of happiness was altruistic rather than egoistic since its ideal was the happiness of all concerned.[81]
Mill rejects a purely quantitative measurement of utility and says it is quite compatible with the principle of utility to recognize the fact, that some kinds of pleasure are more desirable and more valuable than others.[82] Mill gives standard of higher pleasure and lower pleasure to distinguish different values and to avoid everything to be calculated on single scale. He made this distinction to access the quality of desires rather than quantity that is if certain pleasures are degrading then why should they have any weightage in deciding what laws should be adopted.[83] Like in the current application privacy, data protection and liberty has not been given higher pleasure standard and only prevention form infection has been rated as higher one. But the same cannot be held true as to successfully differentiate these aspects one need to experience both of them. It can be different
from person to person also. Like for government prevention is higher pleasure but from the perspective of individual their own safety, privacy or rights regarding liberty has utmost pleasure.
He acknowledges some kind of pleasures are more valuable than others and to know, which one is higher, one need to experience both irrespective of any obligation and then give preference which one is high.[84]
He observed that the hedonist can defend higher pursuits as extrinsically superior on the ground that they produce more pleasure. Mill insists that the greater value of intellectual pleasures can and should be put on a more secure footing.[85]
Moreover, Mill contends, it is an unquestionable fact that, given equal access to all kinds of pleasures, people will prefer those that appeal to their higher faculties. A person will not choose to become an animal, an educated person will not choose to become ignorant, and so on. Even though a person who uses higher faculties often suffers more in life, he would never choose a lower existence, preferring instead to maintain his dignity
He criticizes Bentham by stating[86]:
Mill’s On Liberty is the most influential statement of his liberal principles. Mill thinks that democracies contain their own threats to liberty and this is the tyranny, not of the one or the few, but of the majority.[90] Mill sets out to articulate the principles that should regulate how governments and societies, whether democratic or not, can restrict individual liberties. The recent example of this can be observed in the current policy regarding Arogya Setu which has framed by the government. Under this the government has violated the basic principles of individual liberty and privacy which is antithesis of democracy. The app is restricting the person’s freedom of doing whatever it wants to do without any supervision.
Mill also argues that the individual is usually the ideal arbiter of his own good because he is generally in the best position to ascertain what will further his own good. This epistemological assumption is completely consistent with a utilitarian interpretation of duties to oneself as duties to do, regarding one's own life and interests, what the principle of utility demands[91] A person could be ascribed a duty to protect information about herself from disclosure for the sake of her own happiness, because her own happiness is part of the utilitarian calculus, too. The current application has not observed the individual factors as such and lead to various restraints in their liberty, privacy and choice of using such application. It also imposes various conditions on the
individual like filling of person information before usage of the app and turning on the Bluetooth option all time, which a user does not usually prefers.[92]
Mill believes we should maximize utility, not case by case, but in the long run. And over time, he argues, respecting individual liberty will lead to the greatest human happiness. Allowing the majority to silence dissenters or censor free-thinkers might maximize utility today, but it will make society less happy in the long run,[93] Hence Mill, refined this system to include human rights and his harm principle is an outstanding element in his version of utilitarianism.
What is right to privacy?
On the global level, this right is considered to be a fundamental human right recognized by international declarations like the UN Declaration of Human Rights, the International Covenant on Civil and Political Right and in numerous other treaties and conventions. This right co-exists with the elements of human dignity, security, and reserve. Considering this right’s significance, many countries have already recognized the right to privacy in their constitution. In a few countries like the United States, Ireland and India, the apex courts have implied that the right is found in other provisions of their respective constitutions.
The Constitution of India encompasses Right to Privacy under Article 21, which is a requisite of Right to life and personal liberty. The scope of this article is considered as multi-dimensional in our constitutional history.
Right To Privacy: as a Fundamental Right
The Constitution does not expressly confer the fundamental right to privacy. The eight-judge bench of Supreme Court in the case of M P Sharma v. Satish Chandra District Magistrate[94], Delhi. unanimously refused to read such right into the constitutional scheme since there is no explicit provision conferring right to privacy.’
Again, in the case of Kharak Singh V. State of UP[95], a six-judge bench of Supreme Court by majority refused to recognize the right to privacy as a fundamental right and held that Article 21 has no relevance in the context of right to privacy. Hon’ble Mr. Subba Rao justice gave a dissenting opinion and held that nothing is more deleterious to a man's physical happiness and health than a calculated interference with his privacy.
Thereafter, a three-judge bench of the Supreme Court for the first time in the case of Gobind v. State of Madhya Pradesh[96] recognized right to privacy as a part of the fundamental rights or emanating there from.
However, there was no finding that the right to privacy is a basic human right and a part of right to life and personal liberty, thus protected under Article 21.
It was in the case of R Rajagopal V. State of Tamil Nadu[97] that the Supreme Court recognized right to privacy as a fundamental right implicit in right to life and personal liberty guaranteed under Article 21.
The Supreme Court reiterated the above in the case of People’s Union for Civil Liberties V. Union of India[98].
The judgements in the cases of Gobind[99], Rajagopal[100] and PUCL [101]which held that the right to privacy is a fundamental right are delivered by benches of smaller strengths than the earlier judgements, which had taken a diametrically opposite view. Thus, the said issue was not settled even after six decades of the Constitution having come into force.
The debate over infringement of right to privacy was reignited with respect to collection of biometric data for Aadhaar Card registration. A batch of petitions was filed in the Supreme Court challenging the mandatory Aadhaar registration for availing various social benefits. The issue whether the right to privacy is a fundamental right was referred to a larger bench of nine judges.
The larger bench in the case of K S Puttaswamy V. Union of India[102] unanimously held that right to privacy is a fundamental right and included within the scope of Article 21 of the Constitution, which guarantees right to life and personal liberty.
Hon’ble Justice Mr. D Y Chandrachud (speaking for the majority) held that right to privacy is a basic right of every individual. It is constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution. It was further held that privacy is the constitutional core of human dignity and has both a normative and descriptive function.
At a normative level, privacy subserves those eternal values upon which the guarantees of life, liberty and freedom are founded. At a descriptive level, privacy postulates a bundle of entitlements and interests which lie at the foundation of ordered liberty.
Privacy Concerns in Arogya Setu App.
The aarogya setu app was built as per the standard draft of data privacy which is currently pending Before the Indian parliament as per arnab kumar who is head of this application development this application falls within the controlled manner and collect data accordingly.[103] Such data is encrypted using state-of-the-art technology and stays secure on the phone till it is needed for facilitating medical intervention.[104]
when the aarogya setu app was introduced in India various human right organizations Indian political leaders and concerned experts have expressed their criticism regarding aarogya setu app as it a serious concern about the safety and privacy of the people of India this all led to the argument that this application namely Arogya setu app has no institutional oversight and raises serious data security and privacy concerns.[105]
In a blog post on Medium on 6th may 2O2O, a French ethical hacker Robert Baptiste, who goes by the name Elliot Alderson, observed a number of security concerns and flaws with the app, including that it was possible to modify the location of the app, which can enable one to identify how many people are unwell or infected even without being physically present in their vicinity.[106]
But Robert Baptiste further stated that in a subsequent version of the aarogya setu application, this issue was fixed silently by the developers of the application .[107] on and around 15th may of 2020, one software engineer from Bangalore, further state that growing concerned that installing the aarogya setu application is gradually becoming mandatory in India, hacked the Arogya setu app so it was collecting no data but still flashing a green badge declaring that the user:
was at low risk of infection[108] Experts have noted that India is currently the only democratic nation in the world that had made the coronavirus tracking app mandatory for a significant portion of its population.[109] Some observers have also criticized the app on the ground that it –stores both location data and requires constant access to the phone’s Bluetooth, which makes it invasive from a security and privacy viewpoint.[110]
Until recently, Aarogya Setu was not open source, so the app was also criticized because it could not be audited for security flaws by independent coders and researchers. Experts felt that more transparency could lead to potentially improved security as it would be open to scrutiny from third-party experts, according to news reports. Experts also noted that the app used a static ID and is more easily amenable to de-anonymization i.e. identifying the owner, in case someone else gets hold of the DID, because there is only a single layer of encryption.[111] On May 7, the MIT Technology Review highlighted a number of similar concerns including the absence of a national data protection law.[112] This has raised the concern that the use of the app and its data collection has an ambiguous legal basis.[113]
Though MIT researchers had given the app 2 out 5 stars in their review, they later downgraded the rating to one star, according to The Quint. app lost more points on the parameters of ‘data minimization’ which means the app is collecting more data than needed for the app to work, the article said, citing a Times of India report.[114] One recent report highlights certain examples of this can be non- adherence to the principle of data minimization:
The personal information collected includes detail of the individual’s profession which has no direct relation with the effective use of the App
Proximity data should be used (as opposed to location tracking)[115]
Concern has also been expressed over the lack of definition of collected anonymised data and conflicting reports over how long such data can be retained.[116] There is also concern that health surveillance, which is a necessity in a pandemic, can soon evolve into mass surveillance.[117]
On May 26 the Ministry of Electronics and IT announced that the software has been made open source. The source code for the Android version of the application is available for review and collaboration, the Ministry said, and an iOS version of the application will be released as open source within the next two weeks and the server code will be released subsequently. Almost 98% of Aarogya Setu Users are on Android platform.[118]
Whether Right To Privacy Is Absolute?
The Supreme Court in the case of Puttaswamy case held that the state can interfere with the right to privacy to protect legitimate state interests subject to fulfillment of a threefold requirement of:
It was pertinently held therein that...
An unauthorized parting of the medical records of an individual which have been furnished to a hospital will amount to an invasion of privacy. On the other hand, the State may assert a legitimate interest in analyzing data borne from hospital records to understand and deal with a public health epidemic such as malaria or dengue to obviate a serious impact on the population. If the government protect the identity and privacy of the an 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.
The court further held that the right to privacy may also be infringed for protecting national security,preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits.
Thus, the Supreme Court while reading right to privacy as a part of life and personal liberty also acknowledged that such right would not be absolute and the state can impinge upon such right by a law, which is able to withstand the requirements as laid down therein.
Whether The Mandate To Use Arogya Setu App Qualifies The Tests Laid Down By The supreme Court For Valid Intrusion On Right To Privacy?
It needs to be borne in mind that the application has been launched amidst a pandemic with the object of containing its spread and bringing awareness in the public at large with the risks posed by the virus as well as the safety measures to be adopted.
The order mandating use of the application has been passed by the Chairman of National Executive Committee (hereinafter called as NEC) by virtue of the powers conferred under Section 10 of the Disaster Management Act, 2005.
Section 10(2)(l)[119] of the said act empowers the NEC to lay down guidelines for or give directions to the concerned ministries or departments of government of India, state governments and state authorities regarding measures to be taken in response to any threatening disaster situation or disaster.
By exercising such power, the NEC has issued directions to all district magistrates (state authorities) for implementing lockdown measures as enlisted at Annexure-1 to the order. Condition number 15 at Annexure-1[120] to the order mandates usage of Aarogya Setu App by all employees working in public or private sector.
Thus, the order flows from a statutory provision and fulfills the first requirement of existence of law providing for invasion of right to privacy.
Secondly, if the order is read as a whole, the object of directives cumulatively is to ensure minimum spread of the virus, for which it is imperative to trace all contacts of Covid-19 positive patients.
The frequently asked questions (FAQs) on the App regarding privacy concerns due to access to GPS Data are answered, as.[121]
Arogya Setu is more than just a contact tracing app. In a country with the population density of India’s, the Government of India believes it is necessary to not only identify users who have come in contact with each other but also to trace the paths that infected persons have walked, in order to be able to sanitize areas potentially infected with the disease and identify persons in those areas who might have been infected even though they have not been identified as contacts on the Aarogya Setu app
In addition, when you take the self-assessment test on the Aarogya Setu app, by co-relating the symptoms that you report with your location information, the Government of India will have the ability to identify hotspots where disease may be spreading early enough to be able to prevent it from spreading too far.
A conjoint reading of the order passed by the NEC and the purpose of seeking access to GPS data as described on the App itself, the legitimate state aim, that is of securing public health in times of the pandemic is demonstrated. The state interest in procuring such details is apparent and cannot be termed to be excessive or malafide.
The final requirement for infringement on right to privacy is reasonableness. The data required is for the larger good and securing public health. The Supreme Court has in the case of Puttaswamy case cited an example that the access to health records of individuals in a health emergency can be held to be valid.
It is precisely for the said reason that the privacy of an individual is sought to be invaded in the present case. The application does not require any health data unless the self assessment is undertaken by any individual. The location of individuals would be immensely helpful to the authorities in minimizing the spread of the virus.
The application does not require any data, which is not useful for the government to contain the spread of virus. It appears that the said mandate is now only applicable to public sector employees; which makes the mandate even more reasonable insofar as most of the public sector employees are themselves exposed to large number of people and thus need to be more vigilant about their health status.[122]
This would also contain the spread of virus amongst the frontline workers in these crucial times. Thus, the last requirement of reasonableness with respect to a law invading right to privacy can also be said to have been satisfied.
The mandate to use Aarogya Setu App thus qualifies the tests laid down by the Supreme Court and does not amount to an illegal or unreasonable invasion on the right to privacy.
It also depicts state interest in seeking such data and therefore, justifies the ‘intrusion’. The government may not be able to check the implementation of such a directive, nevertheless, it does not appear to be illegal.
Aarogya data only for health will be deleted in 180 days
The Aarogya Setu Data Access and Knowledge Sharing Protocol released on Monday states that the personal data of the app’s user, which includes contacts and location, will be deleted permanently after one hundred and eighty days from the date on which it is collected, and data can only be used for health purposes.
The protocol, developed and released by the Ministry of Electronics and Information Technology (MeitY), reads: NIC (National Informatics Centre) shall collect only such response data as is necessary and proportionate to formulate or implement appropriate health responses. Further, such data shall be used strictly for the purpose of formulating or implementing appropriate health responses and constantly improving such responses.
The present privacy policy allows the app to retain the data for 60 days after a Covid-19 patient is cured, and for other users, the personal information is removed from the server after 45 days. The new protocol will allow the government to hold on to the data beyond 180 days if a specific recommendation …. is made by the empowered group on technology, which is one of the 11 empowered group of officers formed to deal with lockdown issues.
The new protocol also allows an individual to request for deleting demographic data, which must be abided by in 30 days.
The new norms, which lay emphasis on anonymization of data collected by the app, mention that the data can be shared with the Government of India, and all the agencies that are granted access to the data must use it only for the purpose for which it has been shared and delete it after 180 days.
In the overall flow, the most important data set is the special surveillance system made by the health department in which states (and districts) can look at the information, IT Secretary Ajay Prakash Sawhney, who head the empowered group, said in a press briefing on Monday. Also, applications for testing samples with data reaches ICMR’s lab portals all health systems in NIC and the Health Ministry are combined with Arogya Setu’s self-assessment and Bluetooth contact tracing data. Along with NDMA (National Disaster Management Authority) data and with the help of IIT Madras, analytics is done on all this combined data to see what actions can be taken. This is the broad picture of how we organise our data flows.
The National Informatics Centre (NIC) is responsible for collecting, processing and managing all the data collected by Aarogya Setu, which has been downloaded to the phones of 9.82 crore Indians. NIC shall maintain a list of agencies with which the data is being shared.
This makes it very clear that the intent of the government is only to use this data for COVID-19 related responses and there is no other purpose for which the data has been collected. The purpose is now upfront, and after that period is over, all data will be purged, said Abhishek Singh, the CEO of the IT Ministry’s National e-Governance Division.
There have been a few concerns about how data is shared, how it is being governed, and under what act is it being shared. So while the Data Protection Bill is pending in Parliament, there was a need to lay down the framework because ultimately what we are saying in the privacy policy about collection purpose and use needed a statutory backing,
Recently, the Congress raised security concerns about the application by taking up a technical note by hacker Elliot Alderson. The hacker claimed that through the app he was able to access information about people who were infected by coronavirus and felt unwell, among other data points, including people in sensitive offices like the PMO or Parliament.
IT Ministry’s Additional Secretary S Gopalakrishnan, who also assisted in developing the protocol, told, The Indian Express: It is in the same spirit as the Data Protection Bill. This puts clearly the role of NIC, MEITY, etc. in handling this data.
Compared with the Data Protection Bill, which is under examination by a Parliamentary Joint Select Committee, the new protocol has a stronger emphasis on anonymization of personal data when it is shared with third parties. Though the protocol for sharing and processing of personal data have largely been kept unchanged, the new norms emphasize on de-Identifying which scrubs data of personally identifiable details, and hard anonymization.
Govt issues data processing rules for Aarogya Setu, And Punishment in case of breach[123]
The Indian government issued a set of rule and regulations which need to be considered for purpose of processing of Arogya Setu app users which is formulated to track down the spread of coronavirus and further introduce some provision that may lead to imprisonment of persons found guilty of violating certain norms.
The ministry of electronic and information technology, electronics Niketan, new delhi on 11th may issued a notification for data accesses and knowledge sharing protocol regarding Arogya setu app national informatic centers (here in after called as NIC) any response which is to collected shall be clearly mentioned under the terms and policies of the app further NIC shall only collect the response which are necessary, proportionate and appropriate health issues.
The response collected by NIC through the data server of the app may be shared only with ministry of health and family welfare and with concerned local government authorities only.
Any violation of rule or regulation prescribed under the notification will lead to penalties provided under section 51 to60 of the disaster management act 2005 and other legal provision time being enforced may also be applicable
Analysis And Conclusion
The current policy with regards to Arogya Setu App has been formulated by the government to combat the current situation of pandemic COVID-19. The policy has constituted on the principle of utility as its main aim is the welfare of public at large and it is impossible to manually carry out contact tracing considering the size and population of India. The foundation on which app is formed is basis of shared interest to fight against the current situation.
Initially the government make this application mandatory for every individual and all need to install it in their phone. Companies, individuals, societies and shops are told to make the use of this app compulsory for its employees. This mandatory approach falls under the realm of this aggression by the government. Then said application also raises various concerns like threat to the individual data, leakage of personal information and tracing of every movement. Despite of such concerns principal of utility states that any policy which promotes maximum happiness to greatest number and reduce pain should be adopted. Although, the application has proven extremely effective in tracing the data of infective people but fails to provide maximum good as according to the report this application will be proven successful only if 50% of the current population install this application. But while assessing the current reports it can be said that only 40% of population owns smartphones and only 7% of them has installed it. [124]
Another element regarding the utilitarian approach of Bentham states that only quantitative approach should be considered while framing the policy but JS Mill critic this aspect and argue that there should be qualitative approach as well with the quantitative one. JS Mill also try to reconcile individual rights with the utilitarian philosophy. The policy framed by the government affects individual happiness as well as liberty. Therefore, it has not provided any space for individualism. The current policy also has not considered the quality of welfare and therefore, wrong according to JS Mill. Hence, welfare cannot be the only element that is to be considered and justified for the application. There is a need of proper adherence to other principles also.
Liberty is intrinsic part of utility and if the policy of government formed on the basis of utility then the principal of liberty has also affected. JS mill also stated that sometimes liberty can override utility and therefore right of privacy has of great importance. It is a fundamental right and always need to considered of same significance as other elements. Libertarians also find the concept of liberty significant. But the current application fails to provide protection regarding liberty as well as other relevant factor like privacy. There is no proper clarification on the data usage, enforcement issues and legal complexities has been given. So, by giving the excuse of current pandemic one cannot escaped from its liability to consider all aspect equally relevant with regards to other.
The another main element that is right to privacy has also not been taken care of. Privacy has both positive and negative obligation. Where the negative content aims to restraint the State from intruding upon life and liberty of the person, the positive content aims to impose an obligation upon the State to take necessary precautions for safeguarding the privacy of an individual. Interestingly, the Arogya Setu app fails to satisfy both of these, because of its non-justifiability to proportionality principles. Through the app government does not callously snatch these rights and jeopardize citizens’ safety.
According to Libertarianism the role of the government is severely limited and confined to protect liberty, life and property. But the policy gives wide powers in the hand of government as the disclose purpose of the app is vague enough to expand its scope. It has imposed various conditions on the individual like filling of person information before usage of the app and turning on the Bluetooth option all time, which a user does not usually prefer. Even, there is no documentation publicly available regarding the app.
Libertarian believed that individual rights and liberty are of utmost importance but the application due to its storage of personal information, retention of data and tracing feature, fails to satisfy both these aspects. We also cannot force anyone for the sake of others as it will lead to violation of right. Hence, it cannot be said that the current application is properly justified.
All these going to open a pandora’s box of legal issues and litigations. So, there should be more transparency on the inner workings of an app that is being promoted and the Government can bridge that to a large extent by providing clear information regarding all aspects of the app by introducing a formal framework paper in the public domain or holding extensive press conferences.
It can be concluded that utilitarian approach may only look for only one aspect that is greatest happiness to greatest number but there are other elements that are also relevant for the democracy as mentioned under libertarian approach. Hence, current model of application must protect public interest also while considering the surveillance aspect
End-Notes:
[1] World Health Organization: Coronavirus, COVID-19 is coronavirus disease which is defined as large family of viruses which may cause illness in animals or humans, (2020), available at: https://www.who.int/health- topics/coronavirus.
[2] Rachael Rettner, Coronavirus outbreak officially declared a pandemic: WHO says, (Mar 11, 2020), https://www.livescience.com/coronavirus-pandemic-who.html.
[3] 3Aparna Banerjea, Govt launches 'Aarogya Setu': a coronavirus tracker app, (Apr 02, 2020), https://www.livemint.com/technology/apps/govt-launches-aarogya-setu-a-coronavirus-tracker-app-all-you-need-to- know-11585821224138.html.
[4] Saurabh Singh, Aarogya Setu is Government of India’s first ‘comprehensive’ COVID-19 tracking app, here are all the details, (Apr 02, 2020), https://www.financialexpress.com/industry/technology/aarogya-setu-is-government-of- indias-first-comprehensive-covid-19-tracking-app-here-are-all-the-details/1916887/.
[5] Express News Service, COVID-19: Aarogya Setu is the 'safest app ever', says Government, l(May 11, 2020), https://www.newindianexpress.com/nation/2020/may/11/covid-19-aarogya-setu-is-the-safest-app-ever-says- government-2142041.html.
[6] Hindu Net Desk, Watch How does the Aarogya Setu app work, (May08,2020),.
[7] Supra note at. 3
[8] Anandi Chandrashekhar and Surabhi Agarwal, Legal experts point out liability concerns with the Aarogya Setu App, (May 06, 2020), https://economictimes.indiatimes.com/tech/software/legal-experts-point-out-liability-concerns-with- the-aarogya-setu-app/articleshow/75561944.cms?from=mdr.
[9] Venkat Ananth, Aarogya Setu's not all that healthy for a person's privacy, (Apr 15, 2020),
https://economictimes.indiatimes.com/tech/software/aarogya-setus-not-all-that-healthy-for-a-persons- privacy/articleshow/75112687.cms?from=mdr.
[10]Tech Desk, Aarogya Setu mandatory: Who all mus download the app right away, (May 3, 2020), https://indianexpress.com/article/technology/social/aarogya-setu-app-mandatory-contact-tracing-app-6389284/.
[11] Arjun Dewan, Aarogya Setu: A legal and ethical dilemma? available at (May 10, 2020), https://www.financialexpress.com/lifestyle/health/aarogya-setu-a-legal-and-ethical-dilemma/1953985/.
[12]Richard A. Epstein, Libertarianism and Character, available at https://www.hoover.org/sites/default/files/uploads/documents/0817945725_75.pdf.
[13] Pattanaik, Prasanta K, On the Consistency of Libertarian Values, (1988), available at www.jstor.org/stable/2553913.
[14] David Boaz, Key Concepts of Libertarianism, available at (Apr 12, 2019), https://www.cato.org/publications/commentary/key-concepts-libertarianism.
[15] William E. Mckibben, Six Ways to Argue With A Libertarian, (Oct 28, 1980), https://www.thecrimson.com/article/1980/10/28/six-ways-to-argue-with-a/.
[16] Supra note 13
[17] Michael J. Sandel, Justice: What's the Right Thing to Do, New York: Farrar, Straus and Giroux (2010).
[18]Dave Roos, How Libertarianism Works, ( Jul 10, 2012), https://people.howstuffworks.com/libertarianism1.htm.
[19] Supra note at 14
[20]David Weinstein, The New Liberalism of L. T. Hobhouse and the Reenvisioning of Nineteenth-Century Utilitarianism, (Jul, 1996), https://muse.jhu.edu/article/14917.
[21]Richard A. Epstein , The Classical Liberal Constitution: The Uncertain Quest for Limited Government, first Edition, (2014).
[22] Shawn Grimsley,Libertarianism: History and Philosophy,(Sept3,2014),available at https://study.com/academy/lesson/libertarianism-history-and-philosophy.html
[23] Horacio Spector, Four Conceptions of Freedom, (2010), www.jstor.org/stable/25749186.
[24]Wolff, Jonathan., Libertarianism, (1998), https://www.rep.routledge.com/articles/thematic/libertarianism/v- 1/sections/key-features-of-libertarianism.
[25] ID
[26] Danny Cyril D Cruze, Aarogya Setu App: How Bluetooth helps in identifying Covid-19 suspects, (Apr 24, 2020), https://www.livemint.com/technology/tech-news/aarogya-setu-app-how-bluetooth-helps-in-identifying-covid-19- suspects-11587730877077.html.
[27]Andrew Clarance, Aarogya Setu: Why India's Covid-19 contact tracing app is controversial, (May 15, 2020), https://www.bbc.com/news/world-asia-india-52659520.
[28]Walter E. Block, The Non-Aggression Axiom of Libertarianism, (Feb 17, 2003), available at https://www.lewrockwell.com/2003/02/walter-e-block/turning-their-coats-for-the-state/.
[29] Supra note 10
[30] Roderick Long, The Encyclopedia of Libertarianism, Sage Publications, Inc, (2008).
[31] ID
[32] Brennan J., Libertarianism: What Everyone Needs to Know, Oxford University Press, 2012.
[33] Edward N. Zalta, "Libertarianism", The Stanford Encyclopedia of Philosophy, (Spring 2019 Edition), 2019.
[34] Supra note at 24
[35] Peter Vallentyne, Nozick’s libertarian theory of justice, (Sep, 2011), available at https://www.cambridge.org/core/books/cambridge-companion-to-nozicks-anarchy-state-and-utopia/nozicks- libertarian-theory-of-justice/BF7F5C23CAD033B131AA2AB2325CDBC0
[36] Cooper, Laurence D. Rousseau and Nature: The Problem of the Good Life. Penn State UP, 1999
[37] Crane Brinton, Lord Acton's Philosophy of History, (Jan, 1919), www.jstor.org/stable/1507914.
[38] Edward Feser, Robert Nozick: 1938-2002 in Internet Encyclopedia of Philosophy, (May 4, 2005), http://vidyamandira.ac.in/pdfs/e_learning/SS%2018%20Paper%20V%20Half%201%20Topic%204c.pdf.
[39] Anandi Chandrashekhar & Surabhi Agarwal,Legal experts point out liability concerns with the Aarogya Setu App, (May 06, 2020), https://economictimes.indiatimes.com/tech/software/legal-experts-point-out-liability-concerns-with- the-aarogya-setu-app/articleshow/75561944.cms?from=mdr
[40] Justice K. S. Puttuswamy (Retd.) and Anr. vs Union Of India And Ors. Writ Petition (Civil) No 494 OF 2012.
[41] Supra note at 33
[42] Supra note at 22
[43] Abhijit Ahaskar, Why privacy advocates have concerns over Aarogya Setu app, (Mar 03, 2020), https://www.livemint.com/industry/infotech/why-privacy-advocates-have-concerns-over-aarogya-setu-app- 11588509094177.html
[44] Anam Ajmal, MIT downgrades Aarogya app, (May 22, 2020), https://timesofindia.indiatimes.com/india/mit- downgrades-aarogya-app/articleshow/75881615.cms
[45] Manavi Kapur, (https://qz.com/india/1838063/modis-aarogya-setu-coronavirus-app-for-india-a-privacy-disaster/.Apr 15, 2020),
[46] Rounak Jain, These are the privacy issues in Aarogya Setu, India's Covid-19 tracker app, alleged by French hacker Elliot Alderson, (Mar 7, 2020),https://www.businessinsider.in/tech/apps/news/these-are-the-privacy-issues-in- aarogya-setu-indias-covid-19-tracker-app-alleged-by-french-hacker-elliot-alderson/articleshow/75592800.cms.
[47]Agnidipto Tarafder, Surveillance, Privacy and Technology: A Comparative Critique Of The Laws Of Usa And India, (Oct-Dec, 2015), www.jstor.org/stable/44782800.
[48] Vrinda Bhandari , Aarogya Setu and patient tracking tools: A serious infringement of digital privacy, (May 28, 2020), https://indianexpress.com/article/opinion/aarogya-setu-patient-tracking-tool-data-privacy6431644/
[49] Somya Lohia, In-Depth Aarogya Setu app: From efficacy to privacy concerns, what’s under the hood of Centre’s COVID-19 contact tracing app, (Jun 6, 2020), https://www.moneycontrol.com/news/india/in-depth-aarogya-setu- app-from-efficacy-to-privacy-concerns-whats-under-the-hood-of-centres-covid-19-contact-tracing-app- 5271681.html.
[50] Driver, Julia The History of Utiltarinism The Stnford Encyclopeda of Philosophy (Winter 2014 Edition), 2014
[51] Supra note at 17
[52] Richard A. Posner, Utilitarianism, Economics, and Legal Theory, (1979) www.jstor.org/stable/724048.
[53]Marrkula Centre of applied ethics, Calculating Consequences:The Utilitarian Approach to Ethics, (Aug 1, 2014), https://www.scu.edu/ethics/ethics-resources/ethical-decision-making/calculating-consequences-the-utilitarian- approach/.
[54] J. Moreh, Utilitarianism and the Conflict of Interests, 29 J. Conflict Resol. 137 (1985)
[55] Henry Sidgwick, Outlines of the History of Ethics, Indianapolis: Hackett, 1988.
[56]Robert Goodin, Utilitarianism as a Public Philosophy, (Oct, 1997), www.jstor.org/stable/2382101.
[57] ID
[58] Benethem, Jremmy, A Intro of Principles of Morals and Legislation, Oxford: Clrarendon Press of 19O7
[59] Julius Stone. Province and Function of Law: Law as Logic, Justice and Social Control: A Study in Jurisprudence, (1946), http://heinonline.org/HOL/P?h=hein.beal/provfunc0001&i=331.
[60] Sanshiro, Classical Utilitarianism: The Moral Foundations of Politics, (2003), availableat www.jstor.org/stable/j.ctt1npmpg.6.
[61] Supra note at 3
[62] Adrian Brown, Can Utilitarianism Accommodate Moral Rights, 1995 UCL Jurisprudence Rev. 16 (1995).
[63] Natasha Singer and Choe Sang-Hun, As Coronavirus Surveillance Escalates, Personal Privacy Plummets, (Mar 23, 2020), https://www.nytimes.com/2020/03/23/technology/coronavirus-surveillance-tracking-privacy.html.
[64] Frederick Rosen, Majorities and Minorities: A Classical Utilitarian View, (1990), www.jstor.org/stable/24219404.
[65]Dg. Long, Benetham on Liberty: Jremmy Benetham’s Idea of Liberty in Relation to his Utiltarianism, Toronto university Press, l977.
[66] Adity Aggrawal, Arogya app updates Privacy Policy, Terms of Service: Reverse engineering not banned, but function creep now legitimized, (May 24, 2020), https://www.medinama.com/2O2O/O5/223-arogya-setu-privacy- policy-terms-of-service
[67]Wesley C. Mitchell, Bentham's Felicific Calculus, (Jun, 1918), www.jstor.org/stable/2141580.
[68] Supra note at 27
[69] Supra note at 67
[70] Jeremy; Bowring Bentham, John (Editor). Works of Jeremy Bentham (1843).
[71] Supra note at 5
[72] Philip Schofield, History of Political Thought, Vol. 20, No. 2, Imprint Academic Ltd.,1999.
[73] Supra note at 58
[74] Amla Pisharody, Aarogya Setu: The COVID-19 tracking app, another Surveillance tool?, (Apr 14, 2020),
[75] James E. Crimmins, Contending Interpretations of Bentham's Utilitarianism, (Dec, 1996), available at www.jstor.org/stable/3232049.
[76] Philip Schofield, Jeremy Bentham and HLA Hart's Utilitarian Tradition in Jurisprudence, 1 Jurisprudence 147 (2010).
[77] Edward N. Zalta, Jeremy Bentham, (2020), available at https://plato.stanford.edu/cgi- bin/encyclopedia/archinfo.cgi?entry=bentham
[78] Rajeev Gowda ,union govt. address privacy issue, and to provide greater transparency on Arogya app, (May 12, 2O2O),https://indianexpress.com/article/opinion/columns/aarogya-setu-app-supreme-court-coronavirus-covid- 6405775/.
[79] Richard Paul Anschutz, John Stuart Mill, (May 16, 2020), https://www.britannica.com/biography/John-Stuart- Mill/The-later-years.
[80] Raphael Cohen-Almagor, Ends and Means in J.S. Mill's Utilitarian Theory, 26 Anglo-Am. L. Rev. 141 (1997).
[81] Jonathan Riley, Interpreting Mill's Qualitative Hedonism, (Jul, 2003), www.jstor.org/stable/3543125.
[82] Jesper Ryberg, Higher and Lower Pleasures: Doubts on Justification, Ethical Theory and Moral Practice, vol. 5, no. 4, 2002.
[83] Benjamin Gibbs, Higher and Lower Pleasures, (Jan, 1986), www.jstor.org/stable/3750539.
[84] Katharina Ellemunt, Utilitarianism Explained by J. S. Mill,( Nov 2, 2019), https://medium.com/the-philosophers- stone/utilitarianism-and-much-more-explained-by-j-s-mill-4bdeb901e06d.
[85] David O, Brink, Mill's Deliberative Utilitarianism, (1992), www.jstor.org/stable/2265175.
[86] Berger, Fred R., Happiness, Justice, and Freedom: The Moral and Political Philosophy of John Stuart Mill, Berkeley & Los Angeles: U. of California Press, 1984
[87] SUPRA NOTE 79
[88] Jennifer Dundas, J.S. Mill Meets Ms. G., or, Exploring Implications of Mill's Harm Principle, and His Doctrine of Freedom of Action, 29 Man. L.J. 375 (2002).
[89] id
[90] Panos Mavrokonstantis, A Critical Evaluation of Mill's Proposed Limits on Legitimate Interference with the Individual, 8 Law & Soc'y J. UCSB 87 (2008-2009).
[91] David O. Brink, Mill's Ambivalence about Rights, 90 B.U. L. Rev. 1669 (2010).
[92] Supra note at 27
[93] Marcus G. Singer, Mill's Stoic Conception of Happiness and Pragmatic Conception of Utility, (2000), www.jstor.org/stable/3751793.
[94] AIR 1954 SC 300
[95] AIR1963 SC1295
[96] AIR 1975 (2) SCC48
[97] 1994 (6) SCC 632
[98] 1997 (1) SCC 301
[99] Supra note at 96
[100]Supra note at 97
[101] Supra note at 98
[102] 2017 (10) SCC 1
[103] Arogya application: Lacks in Privacy Laws, Transparent Policies Make App Worrisome, Say MIT Researchers, First Post (May 11, 2020)
[104] Id
[105] Id
[106]Neerad Pandharipande, ‘ Governmet of india must Convince citizen on Arogya Setu’s Efficacy rather than Forcing It on Them’: Cybersecurity Expert Elliot Alderson Tells Firstpost, Firstpost )
[107] supra at 106
[108] Pramod Deshpande, India’s Contact Tracing App Is All But compulsory. So This Programmer Hacked It So that He Always Appears Safe, Buzzfeed News (May 12, 2020.
[109] Patreck Houwell 0’Neil, India Is Forcing People to Use Its Covid App, Unlike Any Other Democracy, MIT Technology Review (May 7, 2020),
[110] Andreew Clearance, Aarogya Setu: Why India’s Covid-19 Contact Tracing App Is Controversial,BBC News (Delhi) (May 15, 2020)
[111] Anuj Srivastava , Arogya app: 6 Questions for the Centre on the corona virus Contact Tracing Application ii, The Wire (May 4, 2020)
[112] Supra note at 109
[113] Triptii Dhariya , Arogya Setu application – Carrying Your Privacy in Your Hands?, Privacy Report (May 29, 2020).
[114] MIIT Researchrs Downgrade Arogya Setu App to One Star in Review, The Quint (May 22, 2020),
[115] Supra note at 113
[116] Id
[117] Anannd , Op-ed, Covid-19: How the Aarogya Setu App Handles Your Data, BloombergQuint (Apr. 17, 2020)
[118] Press Release, Ministry of Electronics & IT,Aarogya Setu Is Now Open Source (May 26, 2020),
[119] Disaster Management Act, 2005
[120]mha.gov.in/sites/default/files/MHA%20DO%20letter%20dt.14.4.2020%20to%20Chief%20Secretaries%20and%20Administrators%20for%20strict%20implementation%20of%20Lockdown%20Order%20during%20extended%20period.pdf
[121] https://www.timesnownews.com/technology-science/article/data-security-on-aarogya-setu-app-faqs-on-features-privacy-policy-use-of-information-answered/577562
[122] https://m.economictimes.com/tech/software/aarogya-setu-app-has-no-vulnerability-no-data-security-breach-has-happened/articleshow/75566481.cms
[123] Ministry of electronic and information technology new delhi Notification no 2(10)/2020-CLeS
[124] Ashlin Mathew, Arogya setu is a surveillance app, will not help those who are most vulnerable to COVID 19 , say experts , (17 april 2020)
Written By: Shahil Rao - The Writer Has Completed His BA,LLB From Guru Gobind Singh Indraprastha University In 2019 And Now Pursuing His LLM(2020-2021) In Constitutional Law From Himachal Pradesh National Law University, Shimla .
Email: [email protected]
Tracking movements of a person through his or her mobile phone is highly intrusive and violates several privacy and data interests. However, effective contact tracing measures have proven to be the key to check the spread of the virus. Analyze in reference to utilitarian and libertarian perspectives. Along with Right to Privacy
Introduction
The coronavirus outbreak is first and foremost a human tragedy, affecting hundreds of thousands of people and global economy. This outbreak has also brought considerable major disruption and leads to adverse implications.[1] The World Health Organization has declared the coronavirus a pandemic on March 11, 2020, as confirmed cases of the disease exceed 120,000 people (with 4,300 deaths) in more than 100 countries.[2]
In addition to the human cost, uncertainty about the speed of the spread has roiled financial markets, weighed on business and projects across industries and sectors, and looks set to take a significant bite out of global GDP growth. So, the coronavirus is affecting everything from travel to sporting events to college class attendance to work environments.
To combat this pandemic Aarogya Setu App that is India's main contact tracing technology is fromulated. It is a software which has been formulated by Indian government , National Information Commission of India in the raising situation of Coronavirus pandemic to connect the citizen of India with various health services.[3]
The main moto for creation of this Arogya setu app is to put up a combined fight against Coronavirus by enlarging government initiative in reaching out to and informing the users regarding risks, best practices and advisories to contain the spread of Coronavirus.[4]many other nations like South Korea, China, and European Countries are also using or are in the process of building their own coronavirus contact tracing software.
Aarogya Setu application is formulated to keep track of other people who are using the app and came into contact with the other person having coronavirus. And then this application/ software alerts the users of the application about their contact with that positive user.[5] this application needs the consent of the person who is using this application for, accessing the location of user and for access of Bluetooth along with some other personal details of the user.
This application uses to monitor and save the details of another user as to detect nearby user of the app via Bluetooth. This application further tracks the current location of user by using GPS details of the device and records it within the interval of fifteen minutes.[6] This application also saves the record in the phone till the time any user tests +ve or declares any symptom of corona virus in a self-assessment survey provided in the app. In that case this app record and upload this detail to the server Thus, it acts as a one-stop solution for spreading awareness about coronavirus, helping self-diagnose users, providing the latest updates and even to store and display e-pass.[7]
While the government insists the app is an important tool in its fight against coronavirus, it has raised concerns over personal privacy, absence of legislative sanction and other issues.[8] The Issues regarding about the storing and keeping the personal data of a user generated by the Arogya setu app. It also violates a fundamental right of privacy which can only be deprived in accordance with procedure established by the law. There is no act passed by the parliament, which authorizes making this app mandatory.[9]
Touted as a voluntary app, the government has steadily pushed for mandatory usage of the service. In the May 1 order extending the lockdown until May 17, the government has mandated 100% coverage of the Aarogya Setu app within containment zones and for both public- and private-sector employees, making the heads of private organizations liable for non-compliance.[10] This is a dramatic and potentially unconstitutional shift from voluntary to mandatory. Valid arguments maybe made that during a pandemic, emergency measures like mandatory usage of an app might be in the public interest. But there are legal and practical challenges to this line of argument that must be considered.
There has also other concerns like use of location data via GPS trails deviates from privacy-focused global standards, risks of misidentification or a false-positive, no transparency regarding data assessment and many more.[11] Thus, the disclosed purpose for the app is also very vague and currently, there is no legal framework that governs the Arogya Setu app, beyond the privacy policy and terms of use.
Hence it can be said that the Arogya Setu app has numerous benefits but also subject to various limitations that is although it proves to be an effective tool to check the spread of the virus but due to its tracing of movement feature it also raises concerns regarding privacy and data. With reference to this statement utilitarian and libertarian perspective has been discussed regarding Arogya Setu app. Utilitarian main approach is to promote and secure the greatest good for the greatest number where as libertarian foundation lies upon priority of minimal government combined with optimum possible individual liberty
Statement Of Problem
Due to the COVID – 19 pandemic, governments across the world have had to take strict measures. The Indian government has also imposed a nationwide lockdown and like other governments it is using technology for contact tracing through an app called Aarogya Setu. Tracking movements of a person through his or her mobile phone is highly intrusive and violates several privacy and data interests. However, effective contact tracing measures have proven to be the key to check the spread of the virus. Analyzing the same in reference to utilitarian and libertarian perspectives.
Objectives Of Study
The objective of this study is to analyzing the violation of privacy of individual as Arogya setu application uses and track movements of a person, with respect to utilitarian and libertarian perspective. The purpose of this study is to understand utilitarian and libertarian perspectives in that regard. and to analyses the above with constitutional validity of Arogya setu application. And the legality of Arogya setu application with any law time being in force.
Significance Of Study
This study’s findings will help to understand the libertarian and utilitarian perspective behind the implementation or formulation Aarogya setu application as it involves question of privacy of an individual person. Both perspective (libertarian and utilitarian) has their own concepts of privacy which are opposite to each other and this study will help in understanding the jurisprudential essence of concept of privacy.
And to draw balance between to perspective as the current policy with regards to Arogya Setu App has been formulated by the government to combat the current situation of pandemic COVID-19. The policy has constituted on the principle of utility as its main aim is the welfare of public at large as it is not possible to conduct manual survey to carry out contact tracing of corona virus by keeping in view the population of India. The foundation on which app is formed is basis of shared interest to fight against the current situation.
Research Methodology
The research methodology that has been adopted by the researcher in the title paper is a DOCTRINAL METHODOLOGY. Internet and the data available in the E-library of Himachal Pradesh National Law is main source of procuring the research material. The main reliance is put upon the secondary data like books, scholars’ articles, journals, newspaper, are referred.
Libertarian Perspective
Libertarianism is a political philosophy that takes individual liberty to be the primary political value. Libertarianism includes a broad spectrum of political philosophies, each sharing the common overall priority of minimal government combined with optimum possible individual liberty.[12] It seeks to define and justify the legitimate powers of government in terms of certain individual rights. It prioritizes freedom and promotes personal responsibility as opposed to the provision of welfare services by the state, and also rejects the compulsions of Socialism and Communism.[13] The rise of liberalism resulted in rapid technological development and a general increase in living standards.
As the roots of libertarianism can be traced back to the 18th and 19th centuries. There has been a lot of writings of philosophers on this view such as John Locke, Robert Nozick, Murray Rothbard, Milton Friedman and F.A. Hayek and many more. But all the writings are based on the common foundation of individual liberty to promote peace and harmony.
Libertarianism is the belief in liberty.
It is set of ideas which advocates the maximization of an individual’s thinking and living by abolishing or minimizing the power of the state.[14] It believes in a world that is free, peaceful and abundant. So, it wants to take control of their own lives without taking into consideration other ideas. Libertarians believe that each individual has his own life and that he has a freedom to choose and live his life. This view of "natural rights" derives from the early writings of Thomas Hobbes and John Locke.[15] Hence, their goal is to bring liberty into the world. They also oppose every kind of unequal treatment such as racism, discrimination, etc.
They are more concerned with the notion of a society that allows individuals to enjoy political and economic liberty, which they see as the foundation for human happiness and prosperity.[16] They argue that individual liberty leads to economic efficiency and other benefits, and is thus the most
effective means of promoting or enhancing social welfare.[17] Milton Friedman, Ludwig von Mises, and Friedrich Hayek are major proponents of this view.
The central issue for libertarianism is the proper nature and justification of the state. Libertarians view the state with great suspicion and are particularly opposed to its attempts to supervise and control people’s lives, or to carry out policies in the name of social justice.[18]
At the same time, they assign to individual strong rights to non-interference and reject the ’collectivist’ idea that people can justly be coerced into carrying out society’s goals or purposes. However, in most versions of the theory it is recognized that some central authority that is a minimal state is required to protect citizens from each other and from the intrusions of other states.
In the twentieth century, welfare state liberalism, or social democracy, emerged as the dominant form of liberalism, and the term liberalism itself underwent a significant change in definition.[19] Most self-described liberals no longer supported completely free markets and minimal government, though they continued to champion other individual rights, such as the right to freedom of speech.
There has been shift in approach as the new liberalism was exemplified by the English philosophers L.T. Hobhouse and T.H. Green, who argued that democratic governments should aim to advance the general welfare by providing direct services and benefits to citizens.[20] Meanwhile, however, classical liberals such as the English philosopher Herbert Spencer insisted that the welfare of the poor and the middle classes would be best served by free markets and minimal government.[21] But the main foundation remains same with slight difference on some points. Thus, a policy of limiting government, respecting individual liberty, and encouraging markets, will remain to be regarded as essential elements of this theory.
The main elements of libertarianism and their perspective on Arogya Setu has discussed further.
Concept Of Liberty
Liberty is a political concept that means to be free from undue or oppressive restraints on a person's
actions, thoughts or beliefs imposed by the State.[22] A person with liberty possesses certain social, political and economic rights protected from improper private and public interference.
Liberty is different from freedom. Freedom is, in its purist form, unrestrained action. Liberty is more restrained. For example, while Harry has the liberty of movement, he does not have the liberty to move his fist into someone's face. Liberty can be understood as non-interference and is the only thing that can be legitimately demanded of others as a matter of legal or political right.[23]
The foundation of libertarianism is liberty. The individual should be free to make his or her own choices according to his or her own desires, as long as those choices don't infringe on the rights of others. They contend that the scope and powers of government should be constrained so as to allow each individual as much freedom of action as is consistent with a like freedom for everyone else.[24]
As a result, libertarians endorse strong rights to individual liberty and private property; defend civil liberties like equal rights for homosexuals; endorse drug decriminalization, open borders, and oppose most military interventions.[25]
Hence, they give central importance in respecting individual rights but the application regarding the current pandemic has not respected the right of individuals and many concerns regarding privacy rights and liberty has been raised. Using of GPS and Bluetooth to locate data has been hindering the individuals freedom as one can easily locate other using this app.[26]
The reports also highlight that algorithm based predictive models to determine positive patients deviates the technology of contact tracing from its real work and has a material impact on individual’s civil liberties.[27]
Principle Of Non–Aggression Axiom
According to the principle that libertarians call the nonaggression axiom, all acts of aggression against the rights of others whether committed by individuals or by governments are unjust.[28] One of the instance of this aggression can be traced in current application as government uses aggressive adoption. Initially the government make this application mandatory for every individual and all need to install it in their phone.[29]
Companies, individuals, societies and shops are told to make the use of this app compulsory for its employees. This mandatory approach falls under the realm of this aggression by the government as no one can force other to do something which he or she not wants to do for the sake of some unforeseen improvement or benefit for other. Thus, according to this principle the application is unjust as it uses some kind of aggression to make individual comply with the policy framework.
Concept Individualism And Rights Of Individuals
Libertarians see the individual as the basic unit of social analysis. Only individuals make choices and are responsible for their actions. Libertarian thought emphasizes the dignity of each individual, which entails both rights and responsibility.[30] The progressive extension of dignity to more people, women, to people of different religions and different races is one of the great libertarian triumphs. Libertarians embrace individualism and they attach supreme value to the rights and freedoms of individuals.
They have a right to be secure in their life, liberty, and property. These rights are not granted by government or by society and are inherent in the nature of human beings.[31] It is intuitively right that individuals enjoy the security of such rights and the burden of explanation should lie with those who would take rights away. Another aspect of the individualism of
libertarians are of view that an individual, rather than the group or the state, is the basic unit in terms of which a legal order must be understood.[32] It also insists on the status of individuals as morally free and equal, something it interprets as implying a strong requirement of individual’s sovereignty and believes that a respect for this status requires treating people as right-holders, including as holders of rights in property.[33]
If we applied the same principle on current situation of application, it can be said that the application has not considered the element of individualism. Due to its silence on data retention and storage of personal information generated on the app, it has not proven successful to adhere the principle of individualism. If users have no control over their data, it is a complete violation of their right to informational, self-determination and the right to be forgotten. The tracing of movements also restricts people from their right of freedom. No weightage to individual rights has been given under this technology.
For a libertarian an individual’s liberty is restricted only if some person has reduced the options available, and has done so in a way which violates that individual’s rights.[34] Libertarians strongly value individual freedom and see this as justifying strong protections for individual freedom. Thus, libertarians insist that justice poses stringent limits to coercion and assume a ’protected sphere’ of strong personal rights to life and liberty.
Minimal State-Role
Libertarianism is a political philosophy holding that the role of the state in society ought to be severely limited, confined essentially to police protection, national defense, and the administration of courts of law, with all other tasks commonly performed by modern governments that are education, social insurance, welfare, and so forth, taken over by religious bodies, charities, and other private institutions operating in a free market.[35]The theories of Jean-Jacques Rousseau are also directed towards a democracy with maximum liberty and minimal state theory.[36]
Libertarians have a great antipathy to concentrated power, for as Lord Acton said, Power tends to corrupt and absolute power corrupts absolutely.[37] Thus they want to divide and limit power, and that means specially to limit government, generally through a written constitution enumerating and limiting the powers that the people delegate to government. The main role of the govt. as per the view of liberals is to provide protection to these and other rights and further liberals have contended that government power should be limited to that which is necessary to accomplish this task. Thus, Libertarian advocates of a strictly minimal state and favor a smaller or greater role for government.
The only sort of state that can be morally justified is what Nozick calls a minimal state, a government which protects individuals, via police and military forces, from force, fraud, and theft, and administers courts of law, but does nothing else.[38] In particular, such a state cannot regulate and interfere with individual’s rights. The various programs of the modern welfare state are thus immoral.
One of them is current policy of government regarding Arogya Setu, not only because it is inefficient and incompetently administered, but because it gives the state control over its citizens. It gives wide powers in the hand of government as the disclose purpose of the app is vague enough to expand its scope and left individual with no other option rather to comply with the current framework.[39] Hence, it violates the concept of minimal state and also make interference with individual’s rights.
Right To Privacy[40]
The idea of privacy as political virtue came with the gradual emergence of liberal democracy. This idea was strongly taken up by liberalism in its attempt to defend individual from extensive state power and what they called the tyranny of these majority, to the extent that privacy came to form one of the central planks of the liberal ideology.41 Privacy is at the cornerstone of some of our most[41]
liberal values of limited government because it serves as a theoretical underpinning for the rule that we are not, generally, obliged to justify our conduct to the government.
Privacy fosters various number of other values. It’s an enabler of democracy that’s why we keep the ballot private. It can foster personal morality that’s why we keep the confessional private. Privacy is also about restraining government misbehavior, which is why we see privacy values as fundamental right and other procedural limitations on government action.[42]
While the government insists the app is an important tool in its fight against coronavirus, it has raised concerns over privacy. It is contented that this app Arogya setu help as a surveillance tool which allowed or unable the government of India to track down the movements of a person and gathering along with storing the sensitive and personal details of an individual.[43]
It is also observed that any app that tracks who you have been in contact with and your location at all times is a clear violation of privacy. Even according to a database maintained by MIT Technology Review, Aarogya Setu, India’s contact-tracing app to combat COVID-19, poses significant risks to the privacy of the user.[44]
Internet Freedom Foundation are raising alarm over its compliance with the globally-held privacy standards.[45] French hacker Robert Baptiste claimed several privacy issue in the app and warned that the ‘privacy of ninety millions people is at stake’.[46] Hence, it can be said Aarogya Setu is not healthy for a person's privacy. Thus, it violates a fundamental right which can only be deprived in accordance with procedure established by the law.
Effect Of Surveillance On Liberty
The gigantic advancement in technology and its contribution in the spread of surveillance by state actors has been at the root of much debate in the judiciary and academia alike. The possibility of gathering an individual's privileged information by both state and non-state players' employing sophisticated technology is more fact than fiction.[47] Most legal systems fail to wholesomely account for the modernization in technological infringement techniques in their protective measures.
In recent years, technology remove various traditional constraints of surveillance, like limited police resources. However, technology today has empowered the various law enforcement agencies with far greater ability to monitor the daily activities of a large number of people. Surveillance capitalism is the only cause of concern.[48] However, the power imbalance between people and the state, in terms of the concentration of powers in the hands of the state, their monopoly over the law and violence, and the possibilities of misuse, means that we should be even more concerned when the state tries to arrogate greater powers to itself.
In the name of surveillance now the government has been using its power extensively and abruptly. Even like in case of current situation limited liability of the government poses several threats to the individual liberty as there is no proper clarification on the data usage, enforcement issues and legal complexities has been provided.[49]
Hence, it can be said that libertarian views everything from the perspective of individualism and liberty. To justify any social order with their perspective it must develops out of individual liberty. The current application has failed to satisfy these elements as it lags behind to consider individual rights, privacy issues and even their right to freedom.
Utilitarian Perspective
Utilitarianism is one of the best known and most influential moral theories. The theory believes that man is social by nature and is always motivated in life by the desire to obtain happiness and avoid pain and that the happiness of each individual involves relations with other individuals which necessitates state regulation of mutual relations of men by legislation.[50] Utilitarian philosophy is associated with object of the state is to promote and secure the greatest good for the greatest number. But there is an ambiguity in the words greater good. It means happiness or pleasure, not necessarily that it means the right thing or wrong thing. According to Bentham, it only means the tendency to augment or diminish happiness or pleasure.[51]
The Greatest Happiness principle is considered as the foundation of this theory and states that actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness. By happiness is intended pleasure, and the absence of pain; by unhappiness, pain, and the privation of pleasure. Thus, Utilitarianism provides that the most ethical and important choice of a person is that he will produce the great happiness for the great number of people.[52]
For instance, a situation of a trolley car driver. The driver is in speed and heading to the work yard. Suddenly, he realizes the brakes don’t work and see five workers are there on the track who are busy jack hammering and do not see his approach. He as the driver has the ability to determine where the train goes by switching the tracks to another track. However, that track has one worker. So according to this approach the driver should switching the tracks and will save five. Although his actions will kill the lone worker.
It can be described as a teleological theory as it considered consequence as to the determination of the act being moral or not[53] As a result of the consequentialist nature of utilitarianism, the means to get to the end are secondary and the end result is considered foremost significant. According to them pleasure, and freedom from pain, are the only things desirable as ends.[54] They also reject moral codes or systems that consist of taboos or commands based on orders given by leaders or supernatural beings or customs, traditions, rather, utilitarian thought that makes a morality be true or justifiable is its positive contribution.[55]
There are two types of Utilitarianism that is Act Utilitarianism and Rule Utilitarianism.[56] Act Utilitarianism believes that the best action is the one that can give the most happiness. It has no moral rules. It believes that for each individual situation, there is an individual action that is to be justified as best if it is for the greatest happiness. On the other hand, Rule Utilitarianism believes that there is a general act of greatest happiness for each situation.[57] In general, it believes in a set of rules or laws that is perceived to be for the greatest happiness. Furthermore, a Rule Utilitarian will consult the rules instead of acting first.
The seeds of the theory can be found in the hedonists and Epicurus, who viewed happiness as the only good. The most important classical utilitarian’s are Jeremy Bentham and John Stuart Mill. Bentham and Mill who are important theorists and social reformers. Their theory has had a major impact both on philosophical work in moral theory and on approaches to economic, political, and social policy.
Principle Of Utilitiarianism By Jeremy Bentham (1748-1832)
Jeremy Bentham was an English philosopher and political radical. He is primarily known today for his principle of utilitarianism, which evaluates actions based upon their consequences. Bentham developed the principles of utility by defining it as a measure of maximizing pleasure while minimizing pain.[58]According to him everyone prefers pleasure over pain. It is with this belief that utilitarian moral principles are founded. In fact, it exerts a powerful hold on the thinking of policy-makers, economists, business executives, and ordinary citizens to this day.
According to him the highest principle of morality is to maximize happiness, the overall balance of pleasure over pain. The ultimate goal is greatest happiness of the greatest number. So, the right thing to do is whatever will maximize utility.[59] Bentham arrives at his principle by the following line of reasoning: We are all governed by the feelings of pain and pleasure. They are our sovereign masters. They govern us in everything we do and also determine what we ought to do. The standard of right and wrong is fastened to their throne.[60] We all like pleasure and dislike pain. The utilitarian philosophy recognizes this fact, and makes it the basis of moral and political life.
Maximizing utility is a principle not only for individuals but also for legislators. In deciding what laws or policies to enact, a government should do whatever will maximize the happiness of the community as a whole. For instance, the case of Arogya Setu app which is formed to combat COVID-19 through the providing of the information to the users of the application about risk is a good practice to limit the spread of corona virus[61] The purpose of the application suggest that it is based on the principle of utility that is welfare of the public at large. It has considered the greatest good that is to prevent maximum number of the people from this infection and to protect them as much as possible.
Bentham does not recognize individual's human rights and therefore, the idea of justice is merely a subordinate aspect of utility and his principle of justice is an implicit part of utility as incorporated in a legislation.[62] This approach also followed in formation of application where the government does not consider individual rights like data protection, privacy issues, and who can be held liable in contravention. It is further contented that this app work as surveillance tool allow the Indian govt. to track down individual movements.[63]
His approach benefits the majority at the expense of the minority, the minority’s rights may not be taken into account. Bentham’s principles often run contrary to individual’s rights, and at times are the antithesis to concepts of modern justice theories.[64] For instance, when crime reduction policies, such as sex offender registries, allegedly promote community safety, offenders’ rights are ignored due to the loss of privacy. This is especially so, given that studies indicate such registries are often ineffective and do little to protect the community. Bentham has also prorogated absolute
liberty rule even though it hurts the minority group. He came to see that a principle could justify inordinate sacrifices by a minority, however that minority might be composed, in the interest of enhancing the happiness of a majority.[65] The same can be observed in arogya setu app as well. Where the government main aim is to prevent the maximum number of humans from COVID infective person although may cause to harm of few individuals. It has been argued that the Arogya setu is a very effective mode to track to down the spreading of noval corona virus and it is not possible to carry out the survey on contact tracing keeping in view the population of our country[66] So although some issues have been faced, the ultimate public is getting benefits from the app and protecting them.
The fundamental unit of human action for him was utility. Bentham has considered only quantitative approach. Bentham further provide a method of calculating the pain ans pleasure which came to be known as the hedonic calculus. Bentham says that the value of a pleasure or pain, considered by itself, can be measured according to its duration uncertainty intensity and certainty and propinquity/remoteness.[67] It is necessary to measure them on a single scale. The latest example of this approach can be observed in arogya setu, where all the things has been counted on only one parameter that is prevention from COVID-19. The other aspects like data protection, mandatory requirement, liability issues or person information concern has not been considered as significant. The government has considered this app requirement from COVID-19 perspective only as it is necessary to protect the spread among maximum people.[68]
Bentham’s idea of utility offers one such common currency. In addition, it is necessary to consider the tendency of an act by which it is produced and, therefore, to take account of the act's fecundity, or the chance it has of being followed by sensations of the same kind and its purity.[69] Finally, it is necessary to consider the extent, or the number of people affected by the action.
Bentham is concerned about the consequences of the actions, regardless of the action itself. He believes in a consequentialist theory. In consequentialism, actions are judged solely by their consequences, without regard to character, motivation, or any understanding of good and evil and separate from their capacity to create happiness and pleasure. Thus, in utilitarianism, it is a result of actions of determinization as to whether the actions are wrong or right.
Therefore, Bentham emphasizes the consequences or ultimate purpose of an act rather than the character of the actor, means, or the particular circumstances surrounding the act. [70] The current contact tracing app has also followed this view and focus on the ultimate goal that is to prevent the spread of infection. The app through its process may have resulted Into various issues and risks but it has only considered its aim to stop COVID-19 by making people aware of their surroundings. This app has also been proven successful to a some extent in its purpose.[71]
As an additional improvement in the manner in which Bentham conceived the utility principle, he might have included the universal interest, an idea initially stated in Plan of Parliamentary Reform where it appears as a more particular conception of the greatest happiness principle.[72]
The universal interest relates to interests that are shared by everyone, and only when it is impossible for government to contrive policies to achieve this end is a distribution of happiness less than universal or less than equal justified.[73] However, the number of decisions made by governments that are genuinely of universal reach are relatively few and may be limited to national defense and the framework of individual rights (securities). The government recent initiative of the arogya setu app is one of the them which has focused on the overall interest of the country. The app has been formed on the basis of shared interest that is to fight against the current situation.[74] It has considered everyone equally and according to government it is an effective tool for everybody to prevent itself from the harm.
Beyond that, redistributive policies invariably involve unequal sacrifices and benefits. This means that the legislator must employ a utilitarian calculation in which the pain experienced by the few is reduced to the minimum necessary to produce benefits for the many; only on this
pleasures be summed and pains subtracted in order to produce the rationale to justify the best policy.[75] Like in the current app according to government it may have cause certain risks to individuals but the utility experienced by the people is more. It means the happiness and benefit shared by the public at large. The universal interest is the egalitarian commitment that in arriving at the appropriate law or policy the interests of each and all must count, and count equally.[76] This does not mean that optimal utility is not the goal, but simply stresses that optimal utility will be more likely achieved where there is an approximate equality in the distribution of the basic requirements of happiness.
He believes that every moral argument, he claims, must implicitly draw on idea of maximizing happiness. People may say they believe in certain absolute, categorical duties or rights. But they would have no basis for defending these duties or rights unless they believed that respecting them would maximize human happiness.[77] The same in arogya setu app where the issue regarding right to privacy and liberty has been raised. But, the same does not bear any fruit until it is required for the good of larger people. Because according to Bentham the rights have been respected only when it is for utility.
Economy, transparency and accountability were equally important in Bentham’s innovative account of administration, as were devices to ensure the maximization of intellectual, moral, and active aptitude in public officials. In government utilitarian outcomes required various democratic procedures that function as securities against misrule. These procedures include: virtual universal suffrage, annual parliaments, secret ballot, and provisions for transparency, publicity and unconstrained public debate. This aspect has been missing in current application as it lags behind on the issue of transparency, accountability and does not provide details regarding the data usage, risk assessment and the person who will held responsible in case of the any infringement or harm.[78]
Utlititarianism Principle As Foundation Of Moral By - John Stuart Mill (1806-1873)
John Stuart Mill was a follower of Bentham. Its goal is to justify the utilitarian principle as the foundation of morals. This principle says actions are right in proportion as they tend to promote overall human happiness.[79] So, Mill focuses on consequences of actions. The central issue of his theory is the question of the supreme good or ultimate end. His argument is designed to show that the general happiness (the maximum happiness) is the ultimate moral good which is also the basis of formation the current pandemic application.[80] The focus of the application is to achieve maximum good for larger number.
Mill agreed generally with Bentham's doctrine but he slightly modified it and included qualitative pleasure along with quantitative one. The same factor is missing in the arogya setu app as it does not consider public’s individual safety and possible future harms. He also insisted that the utilitarian doctrine of happiness was altruistic rather than egoistic since its ideal was the happiness of all concerned.[81]
Mill rejects a purely quantitative measurement of utility and says it is quite compatible with the principle of utility to recognize the fact, that some kinds of pleasure are more desirable and more valuable than others.[82] Mill gives standard of higher pleasure and lower pleasure to distinguish different values and to avoid everything to be calculated on single scale. He made this distinction to access the quality of desires rather than quantity that is if certain pleasures are degrading then why should they have any weightage in deciding what laws should be adopted.[83] Like in the current application privacy, data protection and liberty has not been given higher pleasure standard and only prevention form infection has been rated as higher one. But the same cannot be held true as to successfully differentiate these aspects one need to experience both of them. It can be different
from person to person also. Like for government prevention is higher pleasure but from the perspective of individual their own safety, privacy or rights regarding liberty has utmost pleasure.
He acknowledges some kind of pleasures are more valuable than others and to know, which one is higher, one need to experience both irrespective of any obligation and then give preference which one is high.[84]
He observed that the hedonist can defend higher pursuits as extrinsically superior on the ground that they produce more pleasure. Mill insists that the greater value of intellectual pleasures can and should be put on a more secure footing.[85]
Moreover, Mill contends, it is an unquestionable fact that, given equal access to all kinds of pleasures, people will prefer those that appeal to their higher faculties. A person will not choose to become an animal, an educated person will not choose to become ignorant, and so on. Even though a person who uses higher faculties often suffers more in life, he would never choose a lower existence, preferring instead to maintain his dignity
He criticizes Bentham by stating[86]:
- Bentham's Hedonism was too egalitarian. Simple-minded pleasures, sensual pleasures, were just as good, at least intrinsically, then more sophisticated and complex pleasures.
- Bentham's view that there were no qualitative differences in pleasures also left him open to the complaint that on his view human pleasures were of no more value than animal pleasures and,
- FURTHER committed him to the corollary that the moral status of animals,
tied to their sentience, was the same as that of humans.[87]While harming a
puppy and harming a person
are both bad, however, most people had the view that harming the person
was worse. Mill sought changes to the theory that could accommodate those sorts
of intuitions.
Mill’s writings can be read as an attempt to reconcile individual rights with the utilitarian philosophy. Its central principle is that people should be free to do whatever they wanted to provided they do not cause harm to the others.[88] The only actions for which a person is accountable to society are those that affect others. This is also referred as harm principle theory which states that liberty is absolute until it affects the other human being.[89] Therefore, mill says that justice should not base on majority opinion whereas it supports overall justice.
Mill’s On Liberty is the most influential statement of his liberal principles. Mill thinks that democracies contain their own threats to liberty and this is the tyranny, not of the one or the few, but of the majority.[90] Mill sets out to articulate the principles that should regulate how governments and societies, whether democratic or not, can restrict individual liberties. The recent example of this can be observed in the current policy regarding Arogya Setu which has framed by the government. Under this the government has violated the basic principles of individual liberty and privacy which is antithesis of democracy. The app is restricting the person’s freedom of doing whatever it wants to do without any supervision.
Mill also argues that the individual is usually the ideal arbiter of his own good because he is generally in the best position to ascertain what will further his own good. This epistemological assumption is completely consistent with a utilitarian interpretation of duties to oneself as duties to do, regarding one's own life and interests, what the principle of utility demands[91] A person could be ascribed a duty to protect information about herself from disclosure for the sake of her own happiness, because her own happiness is part of the utilitarian calculus, too. The current application has not observed the individual factors as such and lead to various restraints in their liberty, privacy and choice of using such application. It also imposes various conditions on the
individual like filling of person information before usage of the app and turning on the Bluetooth option all time, which a user does not usually prefers.[92]
Mill believes we should maximize utility, not case by case, but in the long run. And over time, he argues, respecting individual liberty will lead to the greatest human happiness. Allowing the majority to silence dissenters or censor free-thinkers might maximize utility today, but it will make society less happy in the long run,[93] Hence Mill, refined this system to include human rights and his harm principle is an outstanding element in his version of utilitarianism.
What is right to privacy?
On the global level, this right is considered to be a fundamental human right recognized by international declarations like the UN Declaration of Human Rights, the International Covenant on Civil and Political Right and in numerous other treaties and conventions. This right co-exists with the elements of human dignity, security, and reserve. Considering this right’s significance, many countries have already recognized the right to privacy in their constitution. In a few countries like the United States, Ireland and India, the apex courts have implied that the right is found in other provisions of their respective constitutions.
The Constitution of India encompasses Right to Privacy under Article 21, which is a requisite of Right to life and personal liberty. The scope of this article is considered as multi-dimensional in our constitutional history.
Right To Privacy: as a Fundamental Right
The Constitution does not expressly confer the fundamental right to privacy. The eight-judge bench of Supreme Court in the case of M P Sharma v. Satish Chandra District Magistrate[94], Delhi. unanimously refused to read such right into the constitutional scheme since there is no explicit provision conferring right to privacy.’
Again, in the case of Kharak Singh V. State of UP[95], a six-judge bench of Supreme Court by majority refused to recognize the right to privacy as a fundamental right and held that Article 21 has no relevance in the context of right to privacy. Hon’ble Mr. Subba Rao justice gave a dissenting opinion and held that nothing is more deleterious to a man's physical happiness and health than a calculated interference with his privacy.
Thereafter, a three-judge bench of the Supreme Court for the first time in the case of Gobind v. State of Madhya Pradesh[96] recognized right to privacy as a part of the fundamental rights or emanating there from.
However, there was no finding that the right to privacy is a basic human right and a part of right to life and personal liberty, thus protected under Article 21.
It was in the case of R Rajagopal V. State of Tamil Nadu[97] that the Supreme Court recognized right to privacy as a fundamental right implicit in right to life and personal liberty guaranteed under Article 21.
The Supreme Court reiterated the above in the case of People’s Union for Civil Liberties V. Union of India[98].
The judgements in the cases of Gobind[99], Rajagopal[100] and PUCL [101]which held that the right to privacy is a fundamental right are delivered by benches of smaller strengths than the earlier judgements, which had taken a diametrically opposite view. Thus, the said issue was not settled even after six decades of the Constitution having come into force.
The debate over infringement of right to privacy was reignited with respect to collection of biometric data for Aadhaar Card registration. A batch of petitions was filed in the Supreme Court challenging the mandatory Aadhaar registration for availing various social benefits. The issue whether the right to privacy is a fundamental right was referred to a larger bench of nine judges.
The larger bench in the case of K S Puttaswamy V. Union of India[102] unanimously held that right to privacy is a fundamental right and included within the scope of Article 21 of the Constitution, which guarantees right to life and personal liberty.
Hon’ble Justice Mr. D Y Chandrachud (speaking for the majority) held that right to privacy is a basic right of every individual. It is constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution. It was further held that privacy is the constitutional core of human dignity and has both a normative and descriptive function.
At a normative level, privacy subserves those eternal values upon which the guarantees of life, liberty and freedom are founded. At a descriptive level, privacy postulates a bundle of entitlements and interests which lie at the foundation of ordered liberty.
Privacy Concerns in Arogya Setu App.
The aarogya setu app was built as per the standard draft of data privacy which is currently pending Before the Indian parliament as per arnab kumar who is head of this application development this application falls within the controlled manner and collect data accordingly.[103] Such data is encrypted using state-of-the-art technology and stays secure on the phone till it is needed for facilitating medical intervention.[104]
when the aarogya setu app was introduced in India various human right organizations Indian political leaders and concerned experts have expressed their criticism regarding aarogya setu app as it a serious concern about the safety and privacy of the people of India this all led to the argument that this application namely Arogya setu app has no institutional oversight and raises serious data security and privacy concerns.[105]
In a blog post on Medium on 6th may 2O2O, a French ethical hacker Robert Baptiste, who goes by the name Elliot Alderson, observed a number of security concerns and flaws with the app, including that it was possible to modify the location of the app, which can enable one to identify how many people are unwell or infected even without being physically present in their vicinity.[106]
But Robert Baptiste further stated that in a subsequent version of the aarogya setu application, this issue was fixed silently by the developers of the application .[107] on and around 15th may of 2020, one software engineer from Bangalore, further state that growing concerned that installing the aarogya setu application is gradually becoming mandatory in India, hacked the Arogya setu app so it was collecting no data but still flashing a green badge declaring that the user:
was at low risk of infection[108] Experts have noted that India is currently the only democratic nation in the world that had made the coronavirus tracking app mandatory for a significant portion of its population.[109] Some observers have also criticized the app on the ground that it –stores both location data and requires constant access to the phone’s Bluetooth, which makes it invasive from a security and privacy viewpoint.[110]
Until recently, Aarogya Setu was not open source, so the app was also criticized because it could not be audited for security flaws by independent coders and researchers. Experts felt that more transparency could lead to potentially improved security as it would be open to scrutiny from third-party experts, according to news reports. Experts also noted that the app used a static ID and is more easily amenable to de-anonymization i.e. identifying the owner, in case someone else gets hold of the DID, because there is only a single layer of encryption.[111] On May 7, the MIT Technology Review highlighted a number of similar concerns including the absence of a national data protection law.[112] This has raised the concern that the use of the app and its data collection has an ambiguous legal basis.[113]
Though MIT researchers had given the app 2 out 5 stars in their review, they later downgraded the rating to one star, according to The Quint. app lost more points on the parameters of ‘data minimization’ which means the app is collecting more data than needed for the app to work, the article said, citing a Times of India report.[114] One recent report highlights certain examples of this can be non- adherence to the principle of data minimization:
The personal information collected includes detail of the individual’s profession which has no direct relation with the effective use of the App
Proximity data should be used (as opposed to location tracking)[115]
Concern has also been expressed over the lack of definition of collected anonymised data and conflicting reports over how long such data can be retained.[116] There is also concern that health surveillance, which is a necessity in a pandemic, can soon evolve into mass surveillance.[117]
On May 26 the Ministry of Electronics and IT announced that the software has been made open source. The source code for the Android version of the application is available for review and collaboration, the Ministry said, and an iOS version of the application will be released as open source within the next two weeks and the server code will be released subsequently. Almost 98% of Aarogya Setu Users are on Android platform.[118]
Whether Right To Privacy Is Absolute?
The Supreme Court in the case of Puttaswamy case held that the state can interfere with the right to privacy to protect legitimate state interests subject to fulfillment of a threefold requirement of:
- legality, which postulates the existence of law
- need, defined in terms of a legitimate state aim;
- proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.
It was pertinently held therein that...
An unauthorized parting of the medical records of an individual which have been furnished to a hospital will amount to an invasion of privacy. On the other hand, the State may assert a legitimate interest in analyzing data borne from hospital records to understand and deal with a public health epidemic such as malaria or dengue to obviate a serious impact on the population. If the government protect the identity and privacy of the an 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.
The court further held that the right to privacy may also be infringed for protecting national security,preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits.
Thus, the Supreme Court while reading right to privacy as a part of life and personal liberty also acknowledged that such right would not be absolute and the state can impinge upon such right by a law, which is able to withstand the requirements as laid down therein.
Whether The Mandate To Use Arogya Setu App Qualifies The Tests Laid Down By The supreme Court For Valid Intrusion On Right To Privacy?
It needs to be borne in mind that the application has been launched amidst a pandemic with the object of containing its spread and bringing awareness in the public at large with the risks posed by the virus as well as the safety measures to be adopted.
The order mandating use of the application has been passed by the Chairman of National Executive Committee (hereinafter called as NEC) by virtue of the powers conferred under Section 10 of the Disaster Management Act, 2005.
Section 10(2)(l)[119] of the said act empowers the NEC to lay down guidelines for or give directions to the concerned ministries or departments of government of India, state governments and state authorities regarding measures to be taken in response to any threatening disaster situation or disaster.
By exercising such power, the NEC has issued directions to all district magistrates (state authorities) for implementing lockdown measures as enlisted at Annexure-1 to the order. Condition number 15 at Annexure-1[120] to the order mandates usage of Aarogya Setu App by all employees working in public or private sector.
Thus, the order flows from a statutory provision and fulfills the first requirement of existence of law providing for invasion of right to privacy.
Secondly, if the order is read as a whole, the object of directives cumulatively is to ensure minimum spread of the virus, for which it is imperative to trace all contacts of Covid-19 positive patients.
The frequently asked questions (FAQs) on the App regarding privacy concerns due to access to GPS Data are answered, as.[121]
Arogya Setu is more than just a contact tracing app. In a country with the population density of India’s, the Government of India believes it is necessary to not only identify users who have come in contact with each other but also to trace the paths that infected persons have walked, in order to be able to sanitize areas potentially infected with the disease and identify persons in those areas who might have been infected even though they have not been identified as contacts on the Aarogya Setu app
In addition, when you take the self-assessment test on the Aarogya Setu app, by co-relating the symptoms that you report with your location information, the Government of India will have the ability to identify hotspots where disease may be spreading early enough to be able to prevent it from spreading too far.
A conjoint reading of the order passed by the NEC and the purpose of seeking access to GPS data as described on the App itself, the legitimate state aim, that is of securing public health in times of the pandemic is demonstrated. The state interest in procuring such details is apparent and cannot be termed to be excessive or malafide.
The final requirement for infringement on right to privacy is reasonableness. The data required is for the larger good and securing public health. The Supreme Court has in the case of Puttaswamy case cited an example that the access to health records of individuals in a health emergency can be held to be valid.
It is precisely for the said reason that the privacy of an individual is sought to be invaded in the present case. The application does not require any health data unless the self assessment is undertaken by any individual. The location of individuals would be immensely helpful to the authorities in minimizing the spread of the virus.
The application does not require any data, which is not useful for the government to contain the spread of virus. It appears that the said mandate is now only applicable to public sector employees; which makes the mandate even more reasonable insofar as most of the public sector employees are themselves exposed to large number of people and thus need to be more vigilant about their health status.[122]
This would also contain the spread of virus amongst the frontline workers in these crucial times. Thus, the last requirement of reasonableness with respect to a law invading right to privacy can also be said to have been satisfied.
The mandate to use Aarogya Setu App thus qualifies the tests laid down by the Supreme Court and does not amount to an illegal or unreasonable invasion on the right to privacy.
It also depicts state interest in seeking such data and therefore, justifies the ‘intrusion’. The government may not be able to check the implementation of such a directive, nevertheless, it does not appear to be illegal.
Aarogya data only for health will be deleted in 180 days
The Aarogya Setu Data Access and Knowledge Sharing Protocol released on Monday states that the personal data of the app’s user, which includes contacts and location, will be deleted permanently after one hundred and eighty days from the date on which it is collected, and data can only be used for health purposes.
The protocol, developed and released by the Ministry of Electronics and Information Technology (MeitY), reads: NIC (National Informatics Centre) shall collect only such response data as is necessary and proportionate to formulate or implement appropriate health responses. Further, such data shall be used strictly for the purpose of formulating or implementing appropriate health responses and constantly improving such responses.
The present privacy policy allows the app to retain the data for 60 days after a Covid-19 patient is cured, and for other users, the personal information is removed from the server after 45 days. The new protocol will allow the government to hold on to the data beyond 180 days if a specific recommendation …. is made by the empowered group on technology, which is one of the 11 empowered group of officers formed to deal with lockdown issues.
The new protocol also allows an individual to request for deleting demographic data, which must be abided by in 30 days.
The new norms, which lay emphasis on anonymization of data collected by the app, mention that the data can be shared with the Government of India, and all the agencies that are granted access to the data must use it only for the purpose for which it has been shared and delete it after 180 days.
In the overall flow, the most important data set is the special surveillance system made by the health department in which states (and districts) can look at the information, IT Secretary Ajay Prakash Sawhney, who head the empowered group, said in a press briefing on Monday. Also, applications for testing samples with data reaches ICMR’s lab portals all health systems in NIC and the Health Ministry are combined with Arogya Setu’s self-assessment and Bluetooth contact tracing data. Along with NDMA (National Disaster Management Authority) data and with the help of IIT Madras, analytics is done on all this combined data to see what actions can be taken. This is the broad picture of how we organise our data flows.
The National Informatics Centre (NIC) is responsible for collecting, processing and managing all the data collected by Aarogya Setu, which has been downloaded to the phones of 9.82 crore Indians. NIC shall maintain a list of agencies with which the data is being shared.
This makes it very clear that the intent of the government is only to use this data for COVID-19 related responses and there is no other purpose for which the data has been collected. The purpose is now upfront, and after that period is over, all data will be purged, said Abhishek Singh, the CEO of the IT Ministry’s National e-Governance Division.
There have been a few concerns about how data is shared, how it is being governed, and under what act is it being shared. So while the Data Protection Bill is pending in Parliament, there was a need to lay down the framework because ultimately what we are saying in the privacy policy about collection purpose and use needed a statutory backing,
Recently, the Congress raised security concerns about the application by taking up a technical note by hacker Elliot Alderson. The hacker claimed that through the app he was able to access information about people who were infected by coronavirus and felt unwell, among other data points, including people in sensitive offices like the PMO or Parliament.
IT Ministry’s Additional Secretary S Gopalakrishnan, who also assisted in developing the protocol, told, The Indian Express: It is in the same spirit as the Data Protection Bill. This puts clearly the role of NIC, MEITY, etc. in handling this data.
Compared with the Data Protection Bill, which is under examination by a Parliamentary Joint Select Committee, the new protocol has a stronger emphasis on anonymization of personal data when it is shared with third parties. Though the protocol for sharing and processing of personal data have largely been kept unchanged, the new norms emphasize on de-Identifying which scrubs data of personally identifiable details, and hard anonymization.
Govt issues data processing rules for Aarogya Setu, And Punishment in case of breach[123]
The Indian government issued a set of rule and regulations which need to be considered for purpose of processing of Arogya Setu app users which is formulated to track down the spread of coronavirus and further introduce some provision that may lead to imprisonment of persons found guilty of violating certain norms.
The ministry of electronic and information technology, electronics Niketan, new delhi on 11th may issued a notification for data accesses and knowledge sharing protocol regarding Arogya setu app national informatic centers (here in after called as NIC) any response which is to collected shall be clearly mentioned under the terms and policies of the app further NIC shall only collect the response which are necessary, proportionate and appropriate health issues.
The response collected by NIC through the data server of the app may be shared only with ministry of health and family welfare and with concerned local government authorities only.
Any violation of rule or regulation prescribed under the notification will lead to penalties provided under section 51 to60 of the disaster management act 2005 and other legal provision time being enforced may also be applicable
Analysis And Conclusion
The current policy with regards to Arogya Setu App has been formulated by the government to combat the current situation of pandemic COVID-19. The policy has constituted on the principle of utility as its main aim is the welfare of public at large and it is impossible to manually carry out contact tracing considering the size and population of India. The foundation on which app is formed is basis of shared interest to fight against the current situation.
Initially the government make this application mandatory for every individual and all need to install it in their phone. Companies, individuals, societies and shops are told to make the use of this app compulsory for its employees. This mandatory approach falls under the realm of this aggression by the government. Then said application also raises various concerns like threat to the individual data, leakage of personal information and tracing of every movement. Despite of such concerns principal of utility states that any policy which promotes maximum happiness to greatest number and reduce pain should be adopted. Although, the application has proven extremely effective in tracing the data of infective people but fails to provide maximum good as according to the report this application will be proven successful only if 50% of the current population install this application. But while assessing the current reports it can be said that only 40% of population owns smartphones and only 7% of them has installed it. [124]
Another element regarding the utilitarian approach of Bentham states that only quantitative approach should be considered while framing the policy but JS Mill critic this aspect and argue that there should be qualitative approach as well with the quantitative one. JS Mill also try to reconcile individual rights with the utilitarian philosophy. The policy framed by the government affects individual happiness as well as liberty. Therefore, it has not provided any space for individualism. The current policy also has not considered the quality of welfare and therefore, wrong according to JS Mill. Hence, welfare cannot be the only element that is to be considered and justified for the application. There is a need of proper adherence to other principles also.
Liberty is intrinsic part of utility and if the policy of government formed on the basis of utility then the principal of liberty has also affected. JS mill also stated that sometimes liberty can override utility and therefore right of privacy has of great importance. It is a fundamental right and always need to considered of same significance as other elements. Libertarians also find the concept of liberty significant. But the current application fails to provide protection regarding liberty as well as other relevant factor like privacy. There is no proper clarification on the data usage, enforcement issues and legal complexities has been given. So, by giving the excuse of current pandemic one cannot escaped from its liability to consider all aspect equally relevant with regards to other.
The another main element that is right to privacy has also not been taken care of. Privacy has both positive and negative obligation. Where the negative content aims to restraint the State from intruding upon life and liberty of the person, the positive content aims to impose an obligation upon the State to take necessary precautions for safeguarding the privacy of an individual. Interestingly, the Arogya Setu app fails to satisfy both of these, because of its non-justifiability to proportionality principles. Through the app government does not callously snatch these rights and jeopardize citizens’ safety.
According to Libertarianism the role of the government is severely limited and confined to protect liberty, life and property. But the policy gives wide powers in the hand of government as the disclose purpose of the app is vague enough to expand its scope. It has imposed various conditions on the individual like filling of person information before usage of the app and turning on the Bluetooth option all time, which a user does not usually prefer. Even, there is no documentation publicly available regarding the app.
Libertarian believed that individual rights and liberty are of utmost importance but the application due to its storage of personal information, retention of data and tracing feature, fails to satisfy both these aspects. We also cannot force anyone for the sake of others as it will lead to violation of right. Hence, it cannot be said that the current application is properly justified.
All these going to open a pandora’s box of legal issues and litigations. So, there should be more transparency on the inner workings of an app that is being promoted and the Government can bridge that to a large extent by providing clear information regarding all aspects of the app by introducing a formal framework paper in the public domain or holding extensive press conferences.
It can be concluded that utilitarian approach may only look for only one aspect that is greatest happiness to greatest number but there are other elements that are also relevant for the democracy as mentioned under libertarian approach. Hence, current model of application must protect public interest also while considering the surveillance aspect
End-Notes:
[1] World Health Organization: Coronavirus, COVID-19 is coronavirus disease which is defined as large family of viruses which may cause illness in animals or humans, (2020), available at: https://www.who.int/health- topics/coronavirus.
[2] Rachael Rettner, Coronavirus outbreak officially declared a pandemic: WHO says, (Mar 11, 2020), https://www.livescience.com/coronavirus-pandemic-who.html.
[3] 3Aparna Banerjea, Govt launches 'Aarogya Setu': a coronavirus tracker app, (Apr 02, 2020), https://www.livemint.com/technology/apps/govt-launches-aarogya-setu-a-coronavirus-tracker-app-all-you-need-to- know-11585821224138.html.
[4] Saurabh Singh, Aarogya Setu is Government of India’s first ‘comprehensive’ COVID-19 tracking app, here are all the details, (Apr 02, 2020), https://www.financialexpress.com/industry/technology/aarogya-setu-is-government-of- indias-first-comprehensive-covid-19-tracking-app-here-are-all-the-details/1916887/.
[5] Express News Service, COVID-19: Aarogya Setu is the 'safest app ever', says Government, l(May 11, 2020), https://www.newindianexpress.com/nation/2020/may/11/covid-19-aarogya-setu-is-the-safest-app-ever-says- government-2142041.html.
[6] Hindu Net Desk, Watch How does the Aarogya Setu app work, (May08,2020),.
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[8] Anandi Chandrashekhar and Surabhi Agarwal, Legal experts point out liability concerns with the Aarogya Setu App, (May 06, 2020), https://economictimes.indiatimes.com/tech/software/legal-experts-point-out-liability-concerns-with- the-aarogya-setu-app/articleshow/75561944.cms?from=mdr.
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[31] ID
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[54] J. Moreh, Utilitarianism and the Conflict of Interests, 29 J. Conflict Resol. 137 (1985)
[55] Henry Sidgwick, Outlines of the History of Ethics, Indianapolis: Hackett, 1988.
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[57] ID
[58] Benethem, Jremmy, A Intro of Principles of Morals and Legislation, Oxford: Clrarendon Press of 19O7
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[61] Supra note at 3
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[65]Dg. Long, Benetham on Liberty: Jremmy Benetham’s Idea of Liberty in Relation to his Utiltarianism, Toronto university Press, l977.
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[68] Supra note at 27
[69] Supra note at 67
[70] Jeremy; Bowring Bentham, John (Editor). Works of Jeremy Bentham (1843).
[71] Supra note at 5
[72] Philip Schofield, History of Political Thought, Vol. 20, No. 2, Imprint Academic Ltd.,1999.
[73] Supra note at 58
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[77] Edward N. Zalta, Jeremy Bentham, (2020), available at https://plato.stanford.edu/cgi- bin/encyclopedia/archinfo.cgi?entry=bentham
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[84] Katharina Ellemunt, Utilitarianism Explained by J. S. Mill,( Nov 2, 2019), https://medium.com/the-philosophers- stone/utilitarianism-and-much-more-explained-by-j-s-mill-4bdeb901e06d.
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[86] Berger, Fred R., Happiness, Justice, and Freedom: The Moral and Political Philosophy of John Stuart Mill, Berkeley & Los Angeles: U. of California Press, 1984
[87] SUPRA NOTE 79
[88] Jennifer Dundas, J.S. Mill Meets Ms. G., or, Exploring Implications of Mill's Harm Principle, and His Doctrine of Freedom of Action, 29 Man. L.J. 375 (2002).
[89] id
[90] Panos Mavrokonstantis, A Critical Evaluation of Mill's Proposed Limits on Legitimate Interference with the Individual, 8 Law & Soc'y J. UCSB 87 (2008-2009).
[91] David O. Brink, Mill's Ambivalence about Rights, 90 B.U. L. Rev. 1669 (2010).
[92] Supra note at 27
[93] Marcus G. Singer, Mill's Stoic Conception of Happiness and Pragmatic Conception of Utility, (2000), www.jstor.org/stable/3751793.
[94] AIR 1954 SC 300
[95] AIR1963 SC1295
[96] AIR 1975 (2) SCC48
[97] 1994 (6) SCC 632
[98] 1997 (1) SCC 301
[99] Supra note at 96
[100]Supra note at 97
[101] Supra note at 98
[102] 2017 (10) SCC 1
[103] Arogya application: Lacks in Privacy Laws, Transparent Policies Make App Worrisome, Say MIT Researchers, First Post (May 11, 2020)
[104] Id
[105] Id
[106]Neerad Pandharipande, ‘ Governmet of india must Convince citizen on Arogya Setu’s Efficacy rather than Forcing It on Them’: Cybersecurity Expert Elliot Alderson Tells Firstpost, Firstpost )
[107] supra at 106
[108] Pramod Deshpande, India’s Contact Tracing App Is All But compulsory. So This Programmer Hacked It So that He Always Appears Safe, Buzzfeed News (May 12, 2020.
[109] Patreck Houwell 0’Neil, India Is Forcing People to Use Its Covid App, Unlike Any Other Democracy, MIT Technology Review (May 7, 2020),
[110] Andreew Clearance, Aarogya Setu: Why India’s Covid-19 Contact Tracing App Is Controversial,BBC News (Delhi) (May 15, 2020)
[111] Anuj Srivastava , Arogya app: 6 Questions for the Centre on the corona virus Contact Tracing Application ii, The Wire (May 4, 2020)
[112] Supra note at 109
[113] Triptii Dhariya , Arogya Setu application – Carrying Your Privacy in Your Hands?, Privacy Report (May 29, 2020).
[114] MIIT Researchrs Downgrade Arogya Setu App to One Star in Review, The Quint (May 22, 2020),
[115] Supra note at 113
[116] Id
[117] Anannd , Op-ed, Covid-19: How the Aarogya Setu App Handles Your Data, BloombergQuint (Apr. 17, 2020)
[118] Press Release, Ministry of Electronics & IT,Aarogya Setu Is Now Open Source (May 26, 2020),
[119] Disaster Management Act, 2005
[120]mha.gov.in/sites/default/files/MHA%20DO%20letter%20dt.14.4.2020%20to%20Chief%20Secretaries%20and%20Administrators%20for%20strict%20implementation%20of%20Lockdown%20Order%20during%20extended%20period.pdf
[121] https://www.timesnownews.com/technology-science/article/data-security-on-aarogya-setu-app-faqs-on-features-privacy-policy-use-of-information-answered/577562
[122] https://m.economictimes.com/tech/software/aarogya-setu-app-has-no-vulnerability-no-data-security-breach-has-happened/articleshow/75566481.cms
[123] Ministry of electronic and information technology new delhi Notification no 2(10)/2020-CLeS
[124] Ashlin Mathew, Arogya setu is a surveillance app, will not help those who are most vulnerable to COVID 19 , say experts , (17 april 2020)
Written By: Shahil Rao - The Writer Has Completed His BA,LLB From Guru Gobind Singh Indraprastha University In 2019 And Now Pursuing His LLM(2020-2021) In Constitutional Law From Himachal Pradesh National Law University, Shimla .
Email: [email protected]
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