Sidharth and I had the chance to participate in a webinar about the Aarogya Setu app organised by Skoch today. The video for the event is available here.
Interestingly, the panellists for the webinar included representatives of NITI Aayog who assured the audience that the app’s underlying code would be made publicly available and the prohibition on reverse engineering under the Terms of Service would be removed.
Sidharth’s comments focused on the hasty manner in which the Aarogya Setu app has been rolled out. He also highlighted how unlike fields such as bio-medicine where proof of safety and efficacy must be demonstrated through clinical trials, tech based interventions are accepted at face value without much thought. Sidharth has also shared his detailed thoughts at another webinar organised by Suno India yesterday and do check that out as well.
My inputs at today’s event focused on the role of different branches of the State- the Legislature, Executive and Judiciary- during the COVID-19 outbreak. During public health emergencies, there tends to be concentration of power in the hands of the executive branch. The two principal legislations which have been pressed into service during the COVID-19 outbreak, namely the Epidemics Diseases Act of 1897 and the Disaster Management Act of 2005 grant extremely vague and wide powers to the government officials to take any measures necessary to manage an public health emergency and such laws are susceptible to abuse.
For a tech based intervention like Aarogya Setu to be legitimate, the first thing we need is a rights respecting legislative framework governing its operation. Contact tracing apps like Aarogya Setu which are collect sensitive personal of millions of Indians cannot be justified under a colonial era law enacted even before the invention of modern computers. It is true that the Parliament is currently not in session but even during this time, the government can use its ordinance making powers and it has done so for other issues. By providing a solid legislative basis to Aarogya Setu, the government can allay some concerns about function creep.
Since the parliament isn’t currently functioning, it is even more imperative for the judiciary to step in to ensure that people’s fundamental rights are not disproportionately impacted by epidemic control measures. However, the role of the judiciary is tricky because it is expected to safeguard rights without encroaching into the policymaking domain of the executive. I think a great example of how the judiciary can do this was demonstrated by the Kerala High Court yesterday when it was hearing multiple petitions against the Kerala Government’s decision to entrust a US based company called Sprinklr with health data of citizens. The Court clearly stated that it would not question the State Govt’s assessment of whether the deal with Sprinklr was necessary to contain the COVID-19 outbreak but it asked the government some hard questions about why Sprinklr was chosen for this deal. Constitutional courts cannot substitute their own judgement in place of the government’s but they must interrogate the process through which the decision was arrived at.
If this piques your interest, do check out the video of the full event.