Updated: Oct 18, 2021
This is the second part of the two part summary of the discussion during the Webinar on Tech-enabled Exclusion: Law, Poverty, Rights, and Covid19 which Article 21 Trust organized in collaboration with PUCL. In this part we provide a brief overview of the discussion on healthcare and exclusion, which saw Dr. Sunita Bandewar of the Jan Swasthya Abhiyan joining Usha Ramanathan and Sanjay Parikh in a session moderated by Prasanna S. First part of the summary can be found here.
Prasanna set the context for the discussion by highlighting that there seems to be a trend of magic bullet techno-solutionism seen earlier with the Aadhaar project, which Senior Advocate Arvind Datar commented was akin to “having built a bridge and looking for a river”; and now we have Aarogya Setu, named and proclaimed as a bridge.
Lack of transparency and accountability in responding to public health emergencies Speaking from a public health ethics point of view, Dr. Bandewar remarked that transparent communication with the public, various communities, and experts from different fields, in order to create a multidisciplinary understanding of the health emergency, had been missing. The two primary acts invoked in this crisis are The Epidemic Diseases Act, 1897, and The Disaster Management Act, 2005. Since health is a State subject, state governments have also come out with a slew of rules and regulations. The Epidemic Diseases Act, which is a century old and one of the shortest legal texts, gives immense powers to the government but is completely silent on the government’s duties. It was framed in a different time, for a different context; its continued applicability is questionable. With respect to the ethics and responsibilities involved in a response to a public health emergency, she mentioned that the International Covenant on Civil and Political Rights (ICCPR) enjoins a duty on the states party to the Covenant to respect the human rights of every individual.
In 1984, the ICCPR was complemented by the Siracusa Principles which specifically applied to pandemics and enabled governments to put in place some restrictions. Even per these Principles, governments have to adopt two principles in their approach: reciprocity and proportionality. The principle of proportionality required the state to engage in a multidisciplinary discussion prior to the lockdown in order to come up with restrictions proportional to the threat, while the principle of reciprocity required the state to compensate the poor for the restrictions placed on their movement due to which they became vulnerable.
Dr. Bandewar went on to highlight differences between public communication strategies adopted by the State of Kerala and the Government of India. She mentioned that, in Kerala, the government holds a press conference everyday informing people of the state of affairs and questioned the Indian government’s inability to inform the people about various pandemic-related issues concerning them. She asserted that proper communication from the government is an ethical commitment and that, at the beginning of the lockdown itself, it was possible for the government to announce that it would make accommodation arrangements for those who wish to stay and arrange transport for those who wish to head home. She concluded by saying that there is a good health surveillance system available at the district level which is not being utilised properly while there is not enough information available in the public domain regarding the spread of the disease.
Aarogya Setu violates principles laid down in the Right to Privacy judgment Senior Adv. Sanjay Parikh stressed that, even under normal circumstances, there is a duty on both the state and the judiciary to not do anything to endanger the Right to Life under Article 21 and to take positive steps to defend that right against violations. With respect to the Aarogya Setu App, he mentioned that it has come through an executive order and it is virtually of no use in discovering whether a person is infected as that can only be determined through a clinical test. Even if a person moves around, there is no way to determine if they picked up the infection at a certain place. It is already problematic that this app is being pushed through an executive notification – there is no law backing it; but since it is developed through a public private partnership, there is no guarantee that the data is collected and stored securely. In Justice K.S.Puttaswamy (Retd) vs Union Of India (the Right to Privacy judgment) the Supreme Court bench stressed that while a government may have to collect public health information during a pandemic, anonymity of data has to be maintained. It is also vital that such information is shared purely voluntarily. Installing the Aarogya Setu app, however, is being made mandatory for those wishing to travel. There is no clarity on whether the app only collects strictly required information. Under the Section 144 orders issued in NOIDA, downloading the Aarogya Setu app has been made mandatory even if one is only venturing out of the house to buy groceries and making non-use of the app a criminal offence. The increasing number of Covid19 cases shows that the app is not serving any purpose. Instead, it may be violating people’s privacy for which the government is not even taking any liability.
State’s exercise of eminent domain over human bodies Usha asserted that the theory of eminent domain which previously applied to land has been expanded to other things; the people of this country are being told that their bodies and everything therein – their DNA, fingerprints, thoughts and ideas – belong to, and can be controlled by, the state. Parliament is not functioning right now and the Supreme Court has said that it does not wish to intervene in what the executive is doing. Effectively there is no legislative or judicial oversight for the slew of orders, notifications, and ordinances issued by the state. She further highlighted that the report about the people of Dharavi being given Hydroxychloroquine shows that the bodies of slum dwellers are being used as a testing ground. She further mentioned that the Inter-State Migrant Workmen Act has been in existence since 1979 but never implemented properly – the state has simply not cared. The Act acknowledges that a migrant worker is moving to a state where they have no voting rights, the language may be different, and they may have no power to negotiate. Therefore, the Act enjoined a duty on the home state to take care of the migrants, which they could do only if the contractors are licensed and the principal employers are registered. But, almost everywhere across the country, these registers are blank. They now want to create a database of migrant workers because they want to track their movements.
In conclusion, Usha highlighted the issues with the Aarogya Setu App – it requires one to have a smartphone with Bluetooth connectivity, thereby excluding the poor; it lulls people into believing that if they have the App they are safe (from the coronavirus) and need not take other precautions. The government justifies using it in the name of contact tracing but the app is not doing just that – it is also tracking who all are near each other and how often. This is not the sign of a democratic state. She finally quoted Retd. Justice Srikrishna’s statement during a Webinar questioning the source of the authority by which the Empowered Committee formed under the Disaster Management Act is issuing instructions when the Act itself does not bestow any such authority.
Question and Answers Prasanna directed the audience’s questions pertaining to the Aarogya Setu app and its use; the proposed migrant workers’ database and its need; and the next steps for concerned citizens.
In response, Dr. Bandewar mentioned that there is no reason to store the data collected through the Aarogya Setu app for 180 days. With regard to the push for a global mandatory vaccine and the role of the Bill and Melinda Gates Foundation therein, she mentioned that this is indicative of the political economy of the health system which is driven by industry and profit motives with a heavy focus on health technologies. As to making the Aarogya Setu app mandatory, she said that one of the cardinal principles of public health is that if there is no evidence, no science to prove the utility of a strategy it must not be imposed.
Sanjay asserted the need for greater awareness and discussions among the masses about these issues. Usha first spoke of the change that is needed not just in the discourse but in the imagination and then spoke of how people are being reduced to data points which could be fed into the economy and into certain notions of tech-utopia. She spoke of the hypocrisy in Mukesh Ambani’s endorsement of data localization so that the data of Indians remains with Indian corporates but then he strikes a deal with Facebook which has a track record of exploiting people’s data. She sounded a note of caution about technology giants coming together with the government’s blessings and emphasized the need to address the concerns arising out of such partnerships.