More than two years since the initial outbreak, the COVID-19 virus has not afforded the return of normalcy in individual or social lives. At the 55th session of the United Nations Commission on Population and Development the running theme was the lackadaisical national and global policy responses to the unequal COVID-19 recovery. Concurrently, a continuous pressing concern remains a world off-track in achieving many of the Sustainable Development Goals (SDGs) as well as increasing populations on the move due to political strife and climate change. The Commission’s Deputy Secretary-General Amina Mohammed stated “In the face of this gathering storm of adversity, we must come together as an international community,” adding that “we urgently need to renew the social contract to rebuild trust and social cohesion.”
Rule of Law is essential in rebuilding social trust and cohesion which is key for rapid and sustainable global recovery. However, the pandemic also brought to the fore how some States across the world used emergency powers to expand executive authority at the expense of the rule of law. Governments came down harshly on dissenters, the media, and the common citizen. Democratic processes and institutions were undermined, while the judiciary and other regulatory bodies were subject to excessive executive restrictions.
In India, the 68 day national lockdown from March 25 to May 31, 2020 brought the country to a halt. The union government invoked the Epidemic Diseases Act 1897 and Disaster Management Act 2005 to impose the lockdown. The former, a colonial era law was first enacted to tackle bubonic plague in colonial India and empowers the state to take measures to secure public safety and prevent the outbreak of an epidemic. The latter mandates the State to set up a three-tier Disaster Management Authority at the national, state and district levels to formulate a comprehensive plan to mitigate threats, focus on preparedness and build capacity in the face of a disaster. Both the laws failed to put a check on the rapid rise of infections and death in India.
Various governments at the state level curbed movement of individuals under the Indian Penal Code - Sections 144 and 188. The Home Ministry stated that individuals who failed to follow the restrictions would face up to a year of imprisonment. The rule of law was peremptorily traded away for emergency measures that gave immense powers to the police and state authorities to arrest and beat up offenders, including many who were stranded without transport as a result of the sudden lockdown. These acts would hardly pass muster in a constitutional court in a liberal democracy.
Other policy measures adopted by the union and state governments included the use of smartphone contact tracing apps such as the Aarogya Setu. Developed by the National Informatics Centre (NIC) under the Ministry of Electronics and Information Technology, Aarogya Setu was endorsed as a “community driven contact tracing” app that collects data on gender, age, address of a particular user to calculate the risk of infection. To be fair, the Aarogya Setu and various other apps did help identify more than 600 hotspots and aided frontline health workers in developing responses based on the information volunteered by users of the apps. However, these apps also faced fierce controversy in India, especially on aspects of the system architecture, data collection and management, as well as, privacy of individuals using the apps. For instance, the Aarogya Setu requires the Global Positioning System (GPS) and Bluetooth to be activated at all times for the smart phones to connect and collate details with other users in the vicinity. The technical process adopted in Aarogya Setu for exchange of information between users was also shown to have far more privacy breaches than similar apps deployed in democracies such as Singapore and South Korea.
In India, the legal mechanisms to protect a citizen’s right to privacy and personal data are still undefined. Without legal safeguards, citizens do not have redressal mechanisms if the State goes beyond its remit in collecting their data. The extensive use of Aarogya Setu and other apps by the State points to a case of extra-legal surveillance. They not only restricted people’s physical movement but also their right to earn a living. The union and state government at various points in time made it mandatory to install the apps including Aarogya Setu to move for work and other purposes. In normalising the infringement of citizen’s privacy, the State is also pushing for greater intrusions into citizens’ lives without paying heed to constitutional checks.
Since February 2022, the Aarogya Setu app has been integrated with the national digital health stacks in order to roll out the Ayushman Bharat Digital Mission (ABDM). The ABDM aims to create the support system to integrate different stakeholders within the digital health infrastructure of the country. The ABDM is indeed a step forward in enabling patients carry and share their digital heath records with healthcare providers. However, policymakers need to address certain issues before its large-scale adoption. Factors such as asymmetric relations between various stakeholders in the system – doctors, hospitals, insurance companies, low levels of digital literacy and access to technology and the internet, especially in rural areas and patient confidentiality need careful consideration. Despite these plans for digital super-highways, policy measures that address the existing gaps, especially access to doctors and healthcare workers, also need to be bridged.
‘Accessible healthcare for all’ remains a dream for many, including close to half the Indian population, who neither have access to smart phones nor the internet. Further, the collected individual data could be used for multiple purposes including possibly perverse policy prescriptions that could further marginalise minority groups. Identity theft and targeted denial of healthcare apart, many still remain off the radar in accessing welfare services such as maternity wards, the public food distribution system, affordable housing schemes, cooking gas, drinking water and other amenities. Stories are only now emerging told by sex workers, single women, tribal communities, etc. of the stigmatisation that left many of them even more vulnerable during the pandemic. Sex workers, for instance, who are already socially stigmatised because of their profession, faced the loss of livelihood. They were also excluded from the State’s pandemic measures to support marginalised groups. The loss of income was further exacerbated by limited access to healthcare while pushing many into poverty.
Judicial institutions too were affected as a result of the lockdown. Courts were unable to conduct hearings and were severely hampered as they lacked the digital infrastructure to shift cases to online hearings. This resulted in piling up of cases at all levels, leaving citizens at the mercy of the state and its grindingly slow justice system. However, the judiciary overcame some of the initial inertia to pull the Union and State Governments into action during the second wave starting May 2021.
In regularising egregious policy measures, the State is transgressing constitutionally mandated processes. Police and law and order agencies enjoyed greater power without checks on their functioning. Thus, pushing citizens further away from a system of rule of law to rule by law. In turn this is laying down the foundation for a ‘Big Brother State’. Citizens’ daily lives are encroached upon, generally accepted privacy laws are bypassed and digital tools are misused in order to spy on, preempt violable actions and order citizens’ behaviour. The COVID19 pandemic served as a pretext to infringe upon democratic processes as the pandemic itself was portrayed as a state of exception requiring emergency measures.
In foreseeing a situation where political, economic and social lives have returned to some semblance of normalcy, the need of the hour is an unequivocal adoption of what the Chief Justice of India, M V Ramana points out as of the four guiding principles of the Rule of Law – “laws must be clear and accessible”, “equality before the law (including gender equality)”, “right to participate in the creation and refinement of laws”, and finally the “presence of a strong independent judiciary”.
12 August 2022
Vivek N.D. is an Assistant Professor in the School of Law, Mahindra University, Hyderabad, India where he teaches Political Science. He is pursuing his PhD from the Department of Political Science at the University of Hyderabad. His PhD study focuses on the politics of global health governance and policy making by comparing India and South Africa.