The Occupational Safety, Health and Working Conditions Code, 2020 - When exemptions become the norm

In the last Parliament session, three consolidated labor codes were passed by both Houses. The three labor codes that were passed are – (i) The Industrial Relations Code, 2020; (ii) The Social Security Code, 2020; and (iii) The Occupational Safety, Health and Working Conditions Code, 2020. Each of the three labor codes consolidated all labor laws relating to social security, industrial relations, and occupational health and safety of the workers.

In this post, we shall limit our focus to the Occupational Safety, Health and Working Conditions Code, 2020 (‘Occupational Health and Safety Code’). We shall discuss the provisions of this Code which allow the Central and State Governments to exempt an industrial establishment/factory from complying with the provisions of the statute. We shall also discuss on how wide-ranging these powers are, and how they effectively allow the Government to nullify the protections conferred to the workers.

The Occupational Health and Safety Code

The Occupational Health and Safety Code consolidates all existing labor laws that previously governed aspects relating to the health, safety and working conditions of the employees. Some of the pre-existing laws that have been consolidated into this Code are the Factories Act, 1948, the Mines Act, 1952, and the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service), Act, 1979. The Code mandates various obligations which an industrial establishment or a factory has to fulfill, for protecting the health and well-being of the workers.

Some important provisions which confer rights and protections relating to health, safety and working conditions are as follows:

• Section 6 – it mandates the employer to ensure disposal of hazardous and toxic waste, and provide government-prescribed free tests and annual health examinations to the employees.
• Section 24 – it mandates the employer to adhere to all guidelines prescribed by the government relating to separate bathing places and locker rooms for male, female and transgender employees; periodic medical examinations for employees working in mines; and provision of adequate medical facilities such as first-aid equipment and ambulance rooms.
• Section 25 and 26 – It imposes a mandate on the employer to ensure that no worker works for more than 8 hours in a day, and for more than 6 days in a week.

These provisions are intended to address the power imbalance that exists between the employer and the workers, by conferring the workers with essential rights and protections. These rights aim to safeguard the dignity of the workers – by ensuring that the conditions at the workplace are just and humane. The statute also aims to mitigate the health risks that workers may face in certain hazardous industries, such as chemicals and mining.

While the enactment of the Occupational Health and Safety Code is a step in the right direction, the Code confers the Government with wide-ranging powers to exempt one or more industrial establishments from complying with its provisions.

The power to grant exemptions

Section 127, Section 128 and Section 129 of the Code lay down the conditions under which the Central Government can exempt an industrial establishment/factory/workplace from complying with one or more provisions of the Code. Let us discuss each of these provisions below.

Section 127

Under clause (1) of Section 127, the Central Government can issue a notification exempting a single industrial establishment, or a class of such industries from complying with one or more provisions of the Code. This exemption can be given for any period that the Government specifies, and can be made subject to any condition that it may prescribe. Clause (1) confers the Government with a general discretionary power to exempt establishments from complying with one or more provisions of the Code.

But, this general power has an extremely wide ambit, as the Government can, based on its subjective discretion, effectively exempt one or more establishments from complying with the entire Code.

Under clause (2) of Section 127, the State Government can through a notification exempt a new factory or a class of new factories from complying with all or any of the provisions of the Code – if it is satisfied in public interest that it such an exemption is necessary to create more employment opportunities and economic activity. Such an exemption can be granted for any period that the State Government deems fit. Any and every exemption that the State Government grants can easily be justified on the ground that it aims to increase employment and economic activity – as these are among the primary functions of a Government.

Using such broadly worded parameters, the State Government effectively has the power to exempt any new factory from meeting the obligations prescribed by the Code.

Section 128

Section 128 prescribes that during a public emergency, disaster or pandemic, the Central or State Government can issue a notification exempting any workplace or type of work activity from complying with all or any of the provisions of the Code. The term ‘public emergency’ has been defined as a situation where the security of any part of India is under threat – due to war, external aggression or an internal disturbance. While granting an exemption from compliance on the ground of a ‘public emergency’ was also present in the Factories Act, 1948, the other two grounds (disaster and pandemic) have been introduced for the first time by the Code.

During a pandemic, employers should have a greater obligation to protect the health of their workers. Ironically, the prevalence of a pandemic can now be used as a justification to reduce the employers’ obligation to protect the health and safety of the workers. Also, akin to Section 127, even Section 128 can be invoked to nullify compliance with all the obligations prescribed by the Code.

Section 129

Section 129 allows the Central Government to exempt a public institution that is maintained for the purpose of education, training or research from complying with all or any of the provisions of the Code. However, unlike Section 127 and Section 128, this provision has a limited safeguard. An exemption relating to working hours and holidays can only be granted if the Government is satisfied that the institution that receives the exemption has implemented a scheme that has equally beneficial provisions. But, this safeguard shall not be applicable for all other protections conferred by the Code.

If we now read Section 127, 128 and 129 jointly – it is clear that the Government has wide-ranging powers to allow certain industrial establishments to not comply with the entire Code. The Government now effectively has the power to exempt establishments from even the most basic obligations, be it safe disposal of hazardous waste, separate washrooms for male, female and transgender employees, access to safe drinking water, medical facilities etc.

It is likely that Trade Unions may challenge any such exemption notification that the Government may issue in future, if it significantly dilutes the employer’s obligations under the Code. To determine the tests that Courts may use to examine such a challenge, a recent judgment of the Supreme Court in Gujarat Mazdoor Sabha v. State of Gujarat assumes relevance.

The relevance of the Gujarat Mazdoor Sabha decision

In Gujarat Mazdoor Sabha, Justice Chandrachud struck down an exemption notification issued by the Gujarat Government under Section 5 of the Factories Act, 1948 (the Factories Act has now been subsumed into the Occupational Health and Safety Code). This notification exempted all establishments in the State from complying with multiple provisions of the Factories Act. It diluted the protections granted to workers by increasing the working hour limits from 9 to 12 hours, and also reduced the extent of overtime wages that had to be paid.

The Gujarat Government defended this Notification by contending that this was necessary in light of the financial urgency brought about by the Covid-19 pandemic – which was a ‘public emergency’ within the meaning of Section 5 of the Factories Act. Under Section 5, ‘public emergency’ was defined as a situation where the security of any part of India is under threat – due to war, external aggression or an internal disturbance. (This definition is the same as the definition given in Section 128 of the new Occupational Health and Safety Code).

The Court held that the Covid-19 pandemic cannot be considered as an ‘internal disturbance’ within the meaning of the term ‘public emergency’. In light of this, the exemption notification went beyond the ambit of Section 5, and had to be struck down. But, the outcome of a similar litigation under the new Occupational Health and Safety Code may be different, as Section 128 of the Code specifically allows the Government to exempt establishments from complying with its provisions – during a pandemic.

If a similar notification is passed today, the Government can directly contend that it is necessary in light of the pandemic, and need not even refer to the ‘public emergency’ provision. Hence, as long as the pandemic exists, Governments can take benefit of Section 128 to dilute the employers’ obligation to protect the health and well-being of his workers.

At this juncture, it is significant to note that Justice Chandrachud had also observed that the Gujarat Government’s notification was blanket in nature, and applied to all establishments irrespective of the nature of their business. If this observation is taken forward - it implies that the exemption granted should be narrowly tailored in accordance with the doctrine of proportionality. There should be some link between the objective behind the exemption and the establishments who are receiving benefit from the same. Only those establishments that fall within the stated objective of the Government should be entitled to receive the exemption.

If the exemption goes beyond its stated objective, the Court can strike it down for violating the doctrine of proportionality. Also, if the exemption significantly dilutes the employers’ obligations relating to the health and safety of the workers, it can also be challenged for violation of the right to health and dignity, under Article 21. There is hence sufficient scope for a legal challenge, if the State were to dilute workers’ rights by using the pandemic as a justification.

 Irrespective of the outcome of future legal challenges, the larger issue here is that the new Occupational Health and Safety Code is a rare example of a legislation which confers the Government with the power to effectively nullify the applicability of all its provisions. This, in a nutshell, has left workers’ health and safety rights at the whims of the Executive.

Covid-19: The Gujarat HC’s order on regulation of private hospitals in Ahmedabad

Gujarat is among the States that has been most severely affected by Covid-19, and has a mortality rate that is above the national average. The city of Ahmedabad alone accounts for over 70% of the cases in the State, and is the third-most affected city after Mumbai and Delhi. Against this backdrop, the Gujarat HC took suo moto cognizance of the manner in which the State Government has handled the Covid-19 pandemic. It has issued multiple directions and recommendations to the Gujarat Government, through a series of interim orders. The directions and recommendations cover multiple issues, ranging from regulation of private hospitals to improving the functioning of public hospitals.

In its latest order of 22^nd May, the High Court made certain significant observations on the manner in which private hospitals should be regulated during this pandemic. These observations assume significance, as there have been multiple accounts of the manner in which private hospitals have been overcharging patients. This has prompted States such as Maharashtra to take over 80% of the beds in private hospitals, and place a cap on the pricing of these beds. A similar pattern also played out in the city of Ahmedabad, where, as the Gujarat HC noted, private hospitals were attempting to profiteer and take advantage of the pandemic.

Based on these reports, the Gujarat HC had in an earlier interim order (issued on 14^th May) suggested that the Ahmedabad Municipal Corporation (AMC) should take steps to regulate the functioning of private hospitals in Ahmedabad. The AMC accordingly issued an executive order under the Epidemic Diseases Act, 1897 - which laid down a number of regulations that private hospitals had to comply with. The regulations mandated that private hospitals should reserve 50% of their beds for Covid-19 patients, and also prescribed ceiling rates for different medical facilities – above which no private hospital shall be allowed to charge.

Imposing ceiling rates on pricing of the services provided by private hospitals was bound to be contentious – and a few private hospitals refused to comply with the AMC’s regulations. Few hospitals also refused to enter into a mandatory MoU with the AMC, until legal notices were issued to them. Taking note of this, the Gujarat HC directed the State Government to take legal action against those private hospitals which refused to comply with the AMC’s regulations. The Court also provided an important constitutional justification for regulating the activities of private hospitals during the Covid-19 pandemic. After noting that the right to health is a fundamental right under Article 21 of the Constitution, it stated that in times of a pandemic, the State had a duty to ensure smooth and easy access to healthcare for everyone.

The regulations imposed on private hospitals was accordingly held to be a ‘public duty’, and an extension of the State’s public healthcare function. This was because by capping pricing and ensuring availability of beds, the regulations facilitated access to healthcare in private hospitals, and ensured that private hospitals do not profiteer during a pandemic. The regulations were hence in furtherance of the right to health, as they ensured smooth and easy access to healthcare facilities in private hospitals, during this unprecedented situation where government hospitals are overburdened.

The Court also referred to Salmond’s views to state that every right imposes a corresponding duty that the State has to fulfil. It then stated that “The State is obliged to ensure that the Right to Health is respected, protected and fulfilled and is duly provided to all its citizens”. This duty to ‘respect, protect, and fulfill’ is in accordance with Henry Shue’s conception of the correlation between rights and duties. Although the Court does not refer to Henry Shue, its observations are doctrinally in consonance with Henry Shue’s conception. Let us now discuss Henry Shue’s conception of the correlation between rights and duties.

As per Henry Shue, every right imposes three levels of duties on the State – which is the (i) duty to respect; (ii) the duty to protect; and (iii) the duty to fulfill. Let us apply these three levels of duties to the right to health. Under the duty to respect, the State has a negative obligation to ensure that it does not infringe on a person’s right to health in an arbitrary or unreasonable manner. Under the duty to protect, the State has a positive obligation to ensure that private parties do not infringe on a person’s right to health. Finally, under the duty to fulfill, the State has a positive obligation to take steps to secure access to healthcare for one and all.

Capping prices charged by private hospitals is in furtherance of the State’s duty to protect and fulfill, as it ensures that access to private hospitals is available to a wider segment of the population, and is not restricted to the urban elite. In a situation where government hospitals are overburdened, capping prices ensures that more people have the means to avail private healthcare facilities. This is in furtherance of the State’s positive duty of securing access to healthcare facilities during a pandemic. The Court’s reasoning hence also has a strong foundational rights-based justification, and is in sync with the range of duties that the right to health can impose on the State.  

The key takeaway here is that the Court attempts to expand the State’s duty to provide access to healthcare – by also including within its ambit the duty to ensure smooth and easy access to private healthcare facilities. The Court recognizes that during a pandemic, private hospitals cannot be allowed to profiteer, and should assist the State in securing access to healthcare. This constitutional justification has important implications - as other State Governments are also devising similar measures to regulate the functioning of private hospitals.

For instance, the measures undertaken by the AMC resemble the measures adopted by the Maharashtra Government, which has taken over 80% of the beds in private hospitals, and has capped prices. If the actions of the Maharashtra Government are challenged in the Bombay HC, the State can refer to the Gujarat HC’s reasoning to argue that the regulations are in furtherance of the right to health – as they ensure that private hospitals are affordable to a larger segment of the population.

Keeping aside possible legal challenges in different States, the Gujarat HC’s reasoning also has a larger constitutional implication – as it provides a fundamental rights-based justification for regulating private healthcare. As the number of Covid-19 cases are likely to rise and government hospitals continue to be overburdened, imposing a positive duty on the State to ensure easier access to private healthcare is a step in the right direction.

Covid-19: The Telangana HC’s judgment on testing and treatment by private labs and hospitals

The State of Telangana has among the lowest testing rates for Covid-19 in the country. As of 14^th May, the State had conducted only 22,842 tests, which is significantly lower than other states such as Andhra Pradesh, or even Assam. To put the numbers in perspective, the neighboring State of Andhra Pradesh had, as of 14^th May, conducted 2.1 Lakh tests. As health experts have pointed out, low testing numbers mean that many asymptomatic persons who have Covid-19 may go undetected, and may unknowingly spread the virus to others. In light of these low testing numbers, a recent judgment of the Telangana HC assumes significance.

On 20^th May, in Ganta Jai Kumar v. State of Telangana, the Telangana HC struck down an order issued by the District Medical and Health Officer, Hyderabad which prevented private labs from conducting Covid-19 tests, and private hospitals from treating Covid-19 patients. This order replaced and superseded two earlier orders issued on 21^st March and 11^th April respectively. The 21^st March order stated that both public and private labs and hospitals shall test and treat Covid-19 patients. The 11^th April order directed private hospitals to stop performing other elective procedures and surgeries, so that they could enhance the availability of healthcare facilities for Covid-19 patients.

On the same day, this order was superseded and modified through another order which stated as follows:

“Adverting to the subject cited above, orders issued by this office regarding certain instructions on treating only emergency cases at notified hospitals in Hyderabad District vide reference… cited are hereby cancelled with immediate effect”

This order hence effectively prevented private labs and private hospitals from conducting tests, as well as treating Covid-19 patients. This embargo on allowing private labs to conduct Covid-19 tests can be one of the reasons for Telangana’s low rate of testing. As the Court noted, the Telangana Government had prevented private labs from conducting tests even though the Indian Council for Medical Research (ICMR) had approved 12 private labs in Telangana as eligible for conducting Covid-19 tests. The Court accordingly held that in a situation where the ICMR has deemed 12 private labs to be eligible for testing, there is no legal basis or justification for the Telangana Government to stop them.

Taking this forward, the Court held that the 11^th April order (quoted above) did not contain any reasons as to why the Government suddenly backtracked on its earlier decision, and superseded an order that was issued on the same day. As the order did not contain any reasons, it was held to be violative of the principles of natural justice. While violation of principles of natural justice was in itself sufficient to strike down this order, the Court provided another interesting constitutional perspective to this issue.

After noting that the right to health is a fundamental right under Article 21 of the Constitution, the Court held that preventing private labs and hospitals from testing and treating patients went against an individual’s right to obtain the healthcare facilities of his choice. This implies that the right to health confers a person with the freedom to choose the facility in which she wants to get treated, which includes private facilities. By forcing a person to undergo testing or treatment only in public labs or hospitals, the State was imposing an unreasonable and arbitrary restriction on the freedom to get tested or treated at a facility of one’s choice.

The Court also rejected the Telangana Government’s argument that it was administratively more convenient to restrict testing and treatment to government labs and hospitals, and stated that under the garb of containing the pandemic, unreasonable and arbitrary restrictions cannot be imposed on a person’s freedom to get tested and treated at a facility of her choice. Apart from being arbitrary and unreasonable, it was also noted that the restriction was through an executive order, and was not backed by statutory law – which in itself was sufficient to invalidate it.

In this regard, the Court rejected the Government’s contention that such an order could be issued under Section 2 of the Epidemic Diseases Act, 1897 – which is an omnibus provision that allows the State Government to frame ‘temporary regulations’ for containing the spread of an epidemic disease. The Court held that no specific power was conferred by Section 2 to place an absolute ban on testing and treatment in private facilities. The Court hence adopted an approach similar to the one adopted by the Kerala HC in its salary deferment judgment (which we discussed in an earlier post) – to hold that omnibus provisions such as Section 2 cannot be read in a manner that would allow the Government absolute discretion to bring in any and every executive action within its ambit.

The Court hence provides a new dimension to the right to health, by reading in the freedom to obtain the healthcare facilities of one’s choice – which would include private healthcare facilities. Just like other fundamental rights, this freedom shall not be absolute, and reasonable restrictions can be imposed on a person’s right to obtain the healthcare facilities of his choice. It shall be interesting to see how this freedom to obtain healthcare facilities of one’s choice is interpreted and applied in future decisions.  

Apart from the legal and constitutional reasons that we have discussed, the Court also provided a policy-based angle to this issue. It stated that for those people who may be willing to pay for the cost of testing and treatment in private facilities, there is no rationale for the State to compulsorily direct them to government facilities. It also noted that government facilities may not be in a position to handle the huge surge of cases that we may witness in the coming days, and that private healthcare facilities would reduce this burden.

While the Court makes no explicit reference to Telangana’s abysmal testing rates, it noted that limiting testing centres may increase the spread of Covid-19, as those who have the virus but are asymptomatic shall not be detected, and may spread the disease without knowledge. Permitting private labs to conduct tests may partially improve Telangana’s testing rates, and may, in the coming days, give us a better picture of the Covid-19 situation in the State.  

After an elaborate discussion, the Court concluded by stating that it would be counterproductive to allow private hospitals to treat Covid-19 patients in an unregulated manner. It held that those hospitals which had received approval from the ICMR, and which would receive approval in future should be permitted to provide treatment. It accordingly directed all private hospitals who wish to provide Covid-19 treatment to apply to the ICMR – to ensure that they adhere to all requisite healthcare standards.

While the Court’s decision to allow treatment by ICMR-approved private hospitals is a step in the right direction for Telangana, it also brings to light a larger issue – which is the need to ensure that there is sufficient regulation and oversight over the functioning of private hospitals during this pandemic. There have been multiple accounts of the manner in which private hospitals in cities such as Mumbai have been overcharging patients. For precisely this reason, the Maharashtra Government issued an executive order to take over 80% of total operational beds in private hospitals, and also placed a cap on treatment costs.

In the coming days, as Covid-19 cases are on the rise, such an approach of ensuring strict regulation of pricing and availability of beds may be the right balance that State Governments would have to strike. However, there may also be a situation where the Maharashtra Government’s executive order is challenged before the Bombay HC. In this scenario, the Bombay HC may be called upon to give its views on the Telangana HC’s exposition of the ‘right to obtain the healthcare facilities of one’s choice’. There is also a possibility of a legal challenge to similar orders that may be issued by other States. Hence, in the near future, Courts may get an opportunity to test the Telangana HC’s exposition, and devise the scope and ambit of reasonable restrictions that can be imposed on access to private healthcare.

Covid-19: Is there a conflict between safeguarding privacy and public health?

In the previous post, we discussed how we do not ‘trade-off’ or waive our right to privacy when we give our personal data to the State or a private entity. We highlighted how we continue to have a right to privacy over the data that we have parted with, as privacy is a right that belongs to ‘people, and not places’.

In this post, we will analyze a similar trade-off that is being discussed today, which is the trade-off between privacy and public health. This is in light various data collection measures that have been adopted by the Central and State Governments, with the intention of checking the spread of Covid-19.

Different data collection measures and their privacy concerns

To take steps to prevent the spread of the virus, the Central and State Governments have been collecting different types of sensitive personal data. An important category of sensitive personal data that is being collected by State Governments is geo-location data (through GPS). This is being collected for two primary purposes – (i) to ensure that those who have been advised either home or institutional quarantine do not escape the same; and (ii) to conduct contract tracing of those who have been diagnosed positive for Covid-19. This is done to identify those who have come in contact with an infected person, as they have a higher risk of catching the infection and hence need to be tested or isolated immediately.

For instance, the Karnataka Govt. mandated that those who are under home quarantine should upload selfies every one hour with their GPS coordinates on a mobile application.  The only exemption granted is from 10 P.M. to 7 A.M, during which the selfie need not be uploaded. This practically means that the State is deciding the sleep cycle of those who are under home quarantine, as not uploading a selfie within the designated hours may invite harassment from govt. officers. This goes against bodily autonomy and personal choice, which as Justice Chandrachud held in Puttuswamy I, are integral aspects of the right to privacy.

Another smartphone-based application that has gained prominence is the Aarogya Setu application – which is being vehemently promoted by the Central Government. Even this app requires GPS data to work, and provides information with respect to whether you have come in close contact with a Covid-19 patient, the number of positive cases near your area etc. While this app was promoted as a voluntary service that could be downloaded by the user, it is now becoming another recipe for coercion, under the latest lockdown guidelines issued by the Ministry of Home Affairs.

The guidelines state that within containment zones, the local authorities should ensure 100% coverage of the app among the residents – which effectively means that local authorities can coerce all residents to download the app and part with their geo-location data. The guidelines also make it mandatory for employees in both private and public workplaces to download the app, and has cast a duty on the employer to ensure that the employees comply with the same.

A third instance that should concern us is with respect to Sprinklr, which is a New York based company that had received a contract from the Kerala Govt. to manage Covid-19 related data. The data collected by healthcare workers is shared with Sprinklr, which is required to manage the data on its servers. A petition was also filed in Kerala High Court, on the ground that the medical data collected should only be stored locally in government servers, and that the confidentiality of the medical data collected must be ensured. 

In a significant decision, the Court inter alia directed that Sprinklr should not disclose the data to any third party, and must anonymize all collected data. The Court noted that this is necessary to ensure that “there is no data epidemic after Covid-19 epidemic is controlled”. The decision of the Kerala High Court is also of utmost relevance to the other measures that I have referred to above.

All the other instances referred above involve collection of sensitive personal information. They bring to light several privacy concerns such as non-consensual collection of data, and possible sharing of data with third parties. But, instead of addressing such concerns, different state governments have merely contended that such collection of data for purposes such as contract tracing is necessary to check the spread of the disease.

The State’s attitude towards privacy in times of a pandemic

The attitude that both the Central Govt and the State Govts have adopted towards privacy can be highlighted by referring to the arguments of the Kerala Govt. counsel in the Sprinklr matter. The Govt. counsel argued that ‘data management’ is one of the reasons as to why Kerala has successfully managed to control the spread of Covid-19. Now, there can be no quarrel with the proposition that collection of personal data is necessary for contract tracing – which is an important measure to stop the spread of the virus. But, the problem arises when the State disregards privacy under the pretext of meeting the larger objective of public health.

As we discussed in the previous post, a person does not ‘waive’ his privacy when he gives certain personal information to the State, for accessing a benefit or a service. The person continues to have a right to privacy over his data even when it is consensually given to the State (or to a private entity) - and is entitled to a legal remedy if there is an unauthorized use of his personal data. Hence, even if a person voluntarily downloads the Aarogya Setu app, he does not waive his right to privacy over the data that he is sharing with the State. The necessary corollary to this in the current Covid-19 scenario is that even when a person is voluntarily parting with his data for purposes such as contact tracing, he is not  ‘trading-off’ or waiving his right to privacy in order to safeguard public health.

With respect to measures such as uploading periodic selfies and sharing of geo-location data, or parting with medical information, there is no question of consent involved as it is mandatory for certain categories of individuals to part with that information. As consent is not being taken, there is no question of ‘waiving’ or foregoing the right to privacy that arises here. Taking this forward, even non-consensual data collection for protecting public health during the Covid-19 pandemic does not involve any ‘trade-off’ or sacrifice of privacy.

This leads to one common end – which is that when the State collects, uses and stores Covid-19 related data, it should do so in a manner that safeguards privacy. As long as the State does not stick to its rigid stance of viewing privacy and public health as a direct trade-off, it is very much possible to simultaneously safeguard privacy and public health, during this pandemic.

Simultaneously safeguarding privacy and public health

Now, all the measures that have been referred to above can be replaced with alternatives that safeguard privacy, and achieve the objective of protecting public health with equal efficacy. Instead of coercing those under home quarantine to upload hourly selfies, the State can facilitate their quarantine by asking officers or healthcare workers to visit them on a periodic basis, and ensure that they have access to all basic facilities. Such a process shall build mutual trust, which may be more beneficial in ensuring that the quarantine requirements are adhered to.

Uploading of selfies with geo-location data also results in a certain level of stigma. To avoid this stigma, individuals in future may refuse to cooperate and give details about their symptoms, and may also refuse to come forward to get themselves tested. This shall ultimately affect the objective of protecting public health. Hence, not safeguarding privacy may also compromise the State’s larger objective of safeguarding public health.

With respect to sharing and storing of medical data, the State can very well store the data in govt servers, and need not open a Pandora’s box by delegating such actions to a private entity, which is not accountable to ensure confidentiality. It should also ensure that the data is anonymized, in a manner that ensures that no personally identifiable information is publicly accessible. This localized storage of data in govt servers and data anonymization was one contention in the petition filed against the Kerala govt - for sharing the data with Sprinklr. Even in this scenario, storing the data in govt servers and ensuring data anonymization shall not in any way compromise the objective of safeguarding public health.

Finally, making Aarogya Setu mandatory when the app is in its nascent stages leads to further complications, as the State may not have adequately tested the security infrastructure where large amounts of sensitive data (such as geo-location data) are supposed to be collected and stored. The State also has an interest in ensuring that this sensitive personal information such as medical data or geo-location data is not misused by foreign entities for nefarious purposes. Hence, along with compromising privacy, making Aarogya Setu mandatory may create new security vulnerabilities and additional complications for our data infrastructure.

The above discussion highlights that giving scant regard to privacy may lead to unintended consequences. Giving scant regard to privacy for public health may, along with compromising privacy, also compromise public health and security. As Covid-19 is unlikely to die down anytime soon, a lack of privacy safeguards may create a data epidemic along with this pandemic. We, as citizens, must hence continue to be vigilant.