Eminent lawyer Harish Salve recently told the Supreme Court that citizens cease to have rights during a war; and that courts should not interfere if rights are infringed. Such an argument has perhaps been made for the first time after the Emergency in the mid-seventies when fundamental rights were suspended, though under very different circumstances.
The statement has left constitutional experts and legal scholars fuming. The sovereignty of the people and the state, and rights of the people, can never be suspended, they say. The Modi government, which has an obsession for apps, is compromising sovereignty and handing over data to technology companies like Google and Facebook, which increasingly seek to control the world.
The UK-based research firm Compritech had found India among the three biggest surveillance states in the world after China and Russia. Absence of safeguards and legal frameworks besides no provision for independent audit made Indians especially vulnerable, it said. It is not a coincidence that in 2018, the Government of India authorised as many as 10 agencies to conduct surveillance on Indians. They were the IB, CBI, NIA, RAW, DSI (Directorate of Signal Intelligence), NCB, ED, CBDT, DRI and Delhi Police.
The Israeli software Pegasus, it was revealed by Facebook which owns WhatsApp, had been used to snoop on encrypted WhatsApp chats by Indians. And an undisclosed amount of money was spent by the government to buy spyware, facial recognition systems, drones, CCTV cameras, besides developing various apps to collect and capture data. The government has hummed and hawed but neither denied nor accepted that it had bought Pegasus although the Israeli company is allowed to deal only with governments. There is literally nothing about middle class India that the government today doesn’t know.
Amusingly, it knows nothing about the poor, the working class and the slum dwellerswho do not have access to smart phones. This ignorance was revealed in the decision to impose the ill-thought out lockdown and in subsequent government notifications and clarifications on the movement of migrant workers.
The AarogyaSetu app, made mandatory from this week, is again seen by many as a ‘sophisticated surveillance tool’, made more sinister in the absence of a Data Protection Act. A draft Act was prepared by the Srikrishna Committee over two years ago. There is no explanation from the government why it has not been presented, debated and passed by Parliament.
The app, tech experts say, may not even be particularly effective in keeping people safe. And stray examples which are surfacing bear this out.
Ashok Bhatt (68) is among the millions of Indians who have downloaded the AarogyaSetu app. He is fascinated to see the message “high risk” appear on the screen. The app advises him to get tested for COVID-19. But a bewildered Bhatt exclaims, “I have no fever, I am not coughing and don’t have any breathing difficulty either; why should I get tested?”
Bhatt (not his real name) is a healthy man, who is a borderline diabetic. His age and his declaration that he is diabetic, he believes, made him ‘high risk’, though he has no travel history and has been confined to his home for the past 40 days. His tense family members (he lives with his wife, son and daughter-in-law) have quarantined him in a room and are exploring where and how to get him tested. An annoyed Bhatt says over the phone, “This is ridiculous. I feel fine but they are behaving as if I am about to die.”
Is it a false alarm? Nobody can tell for sure because the app is barely a month old and has not been tested on the ground. Those who tested it found it flawed. This is what Techcircle.in reported soon after the app was launched in April: “The app mentions during installation that the user will be alerted if they come into close proximity with someone who could be infected with COVID-19. When TechCircle tested the app to find out if the alert feature actually works in the real world, the results weren’t convincing…We used two mobile phones with GPS, mobile data and Bluetooth enabled and kept them in proximity to each other. Fictional data was used to complete the self-assessment test on both phones. One came back as high risk and the other user was placed under the low risk category. However, the app didn’t send any alerts to the lowrisk user even after an hour.”
Legal scholar and researcher UshaRamanathanpoints out that the app could actually endanger lives. Most COVID-19 patients seem to show no symptoms in the first week or ten days after getting infected. During this period, she points out, these asymptomatic people would have no reason to report that they are ill or showing symptoms. And with the app showing them to be safe, they would be allowed to move freely, which will then defeat the purpose of keeping people safe.
The app, she apprehends, will make people careless and make them lower their guard. People, she says, would suffer from a false confidence that the app would keep them safe. “But the only thing that will keep you safe from the virus is by putting on masks, maintain physical distance, keep surfaces clean and by washing hands regularly,” she quipped in a video conference arranged by Rajasthan-based NGO, Loktantrashala. Resident Welfare Associations (RWAs) which are insisting on people showing that they are safe on their app before being allowed to enter, she said, are actually endangering the lives of residents.
There are others who have issues with the app. New Delhi-based Software Freedom Law Centre issued the following statement on May 2, 2020. It said, “India is the only democratic country that has mandated the use of a contact tracing app for its citizens. The mandatory use of such an app will further exclude sections of population which have been digitally excluded. The Government has gone back on its earlier promise on the AarogyaSetu app being voluntary. There is no reason for India, which is similarly placed as other countries to do things in a way that affects the rights of citizens.”
“It is imperative for an app that collects data of all citizens to be open source as this allows for its code to be audited by the developer community and security experts. The app has already been found to be vulnerable and such an app cannot be forced on the citizens risking their data and security.”
Internet Freedom Foundation and 40 other organisations also wrote to the Prime Minister in April, expressing reservations about the app. But typically, they received no response. Has the surveillance state of India succeeded in meeting its objectives? Are Indians safer? And if they are not, what is surveillance achieving for them?