1. My subjects today are the right to privacy and access to justice.
2. Under the shadow of the coronavirus pandemic, globally, governments’ responses to the pandemic have created an intersection at which these subjects meet. Two issues arise at this intersection. The first of these is a perennial one: concerning the rule of law and our anatomy of governance in periods of national and global crisis. The second issue, more unique to our current predicament in contending with the coronavirus, relates to the terms and consequences of the use and the limits of technological solutions to overcome the pandemic.
3. In emergency, there can be derogation of rights subject to an accountable functioning of the Executive!
4. The pandemic and governmental responses have had a vast array of consequences, some of which remain to be analysed and discussed after normalcy has been restored. Obviously, the pandemic is first a public health crisis. While contending with it other extraordinary and unprecedented situations arise. Maintaining the rule of law is one of these situations. We must be alive to the role of the law not only in containing and managing public health concerns but also in creating the conditions for a recovery.
5. Alongside the public health and economic consequences of governments’ choices during the past year, important consequences for fundamental rights and for the institutional integrity of the State have resulted.
6. We must reflect on the place of expertise in decision making by the executive, both in ordinary times and in extraordinary ones like the present moment.
7. Though the pandemic is unprecedented in many respects, the anatomy of the crisis that COVID-19 created for state authorities is not unusual. Constitutional law and international human rights law are, of course, alive to periods of crisis requiring a swiftly responsive executive arm. Accordingly, through the measure of calling an emergency by representative legislatures, the executive can be permitted some leeway in the manner in which it will choose to respond to an unfolding crisis. Often, these responses will abridge fundamental rights in ways not ordinarily considered permissible. For the constitutional and public legitimacy of the executive to be maintained, post facto review of its actions by Parliament or an Independent Commission is essential – and ought to be – built into the framework for responding to crises.
8. Indeed, “public health” is an admitted basis upon which States may call emergencies under the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights. Emergency powers should be used within the parameters provided by international human rights law, which acknowledges that States may need additional powers to address exceptional situations. These powers should be time-bound and exercised on a temporary basis with the restorative aim of bringing about a state of normalcy as soon as possible. Even without formally declaring states of emergency, States can adopt exceptional measures to protect public health which restrict some human rights. But these restrictions must meet the requirements of legality, necessity and proportionality, and be non-discriminatory. The suspension or derogation of certain civil and political rights is only allowed under specific situations of emergency that “threaten the life of the nation”.
9. Formally calling an emergency invites scrutiny and allows for greater transparency and accountability of states. And though this country and India – my own – spent the past year under extraordinary restrictions on the freedom of movement and other guaranteed protections even though no formal declarations of emergency under constitutional law were made. Instead, recourse was had to statutory devices which cloaked the executive with sweeping powers.
10. The Coronavirus Act might be called a Constitutional improvisation. Governments, with or without the requisite expert advice, will make up their responses to any new crisis along the way, as it unfolds. The English example was an accountable government supported by scientific advice with Parliamentary accountability was a creditable example of governance in a difficult situation.
11. As law students, you are no doubt aware of Tom Bingham’s excellent eight-item catalogue of the elements of the rule of law. It requires:
First: “the law must be accessible and so far as possible intelligible, clear and predictable.” [Legal Certainty]
Second: “questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.” [Law, not Discretion]
Third: “the laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.” [Equality before the Law]
Fourth: “the law must afford adequate protection of fundamental human rights.” [Rights Guarantees]
Fifth: “means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve.” [Access to Justice & to the Courts]
Sixth: “ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers.” [Government Servants exercising Limited Powers in Good Faith]
Seventh: “adjudicative procedures provided by the state should be fair.” [Fairness in Adjudication]
Eighth: “the rule of law requires compliance by the state with its obligations in international law, the law which whether deriving from treaty or international custom and practice governs the conduct of nations.” [Observance of International Law]
12. We will have to deliberate and discover the way forward collaboratively. One such collaborative effort is underway in the work of a Constitution Committee constituted by your Parliament, which is considering the Constitutional implications of COVID‑19 and looking into precisely such questions.
13. In governments’ responses to the pandemic, many of the preoccupations that privacy scholars and activists have had over the last decade – the datafication of government, mission creep, privity problems among other things – have come to a head.
14. But to better appreciate that discourse, let us dwell on some ideas that underpin our conception of information privacy in contemporary times.
15. I say “informational privacy” because, in fact, privacy – the term, unqualified – covers a vast array of zones of our living and being. It covers privacy over our bodies, our homes, our effects, our communications and our decisions in daily life.
16. The constitutional idea of privacy in the Anglo-American legal imaginary originates in the physical and tangible idea of protecting the home, as a sanctuary from ingress by the state or by our neighbours. By 1604, Lord Coke had pronounced that “the house of everyone is to him as his castle and fortress” in Semayne’s Case. And Blackstone echoes that sentiment, pronouncing in his Commentaries that our laws have “so particular and tender a regard to the immunity of a man’s house that it styles it his castle, and will never suffer it to be violated with impunity.”
17. The situs of the protections afforded by privacy shifted to the person by the time that Samuel D. Warren & Louis D. Brandeis write for the Harvard Law Review in 1890. In fact, in their call for the right of all persons to privacy from unwanted intrusion and a right to be let alone, Warren & Brandeis touched on an issue that remains absolutely vital to the privacy discourse of today. Their call for the new right of privacy came as a response to the proliferation of a new technology they called “the instantaneous photograph” and its effect on the capabilities of an ever more intrusive press. In their words:
“Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life, and numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’”
18. In our own times, we can build on Warren & Brandeis and think of privacy as the idea that one must be able to exercise a meaningful degree of choice, decision making power and control over information that relates directly and uniquely to him or her, even as new information technologies wax and wane. This is what the German Constitutional Court has done in its Census Decision of 1983 through its exposition of the idea of informational self-determination. At least two features of that decision are of enduring value:
19. First, the Court held that one’s capacity for free choice deserves special protection in the face of data collection at scale. In the Court’s words:
“The individual’s decisional authority needs special protection in view of the present and prospective conditions of automatic data processing. It is particularly endangered because . . . the technical means of storing highly personal information about particular persons today are practically unlimited, and information can be retrieved in a matter of seconds with the aid of automatic data processing, irrespective of distance. Furthermore, such information can be joined to other data collections—particularly when constructing integrated information systems…”
20. Second, the Court explained that the capacity of every individual to act autonomously, and self-determine is undermined in the absence of concrete data protection measures. The Court puts it like this:
“… the concept of self-determination presupposes that the individual be given the freedom to decide … It would be incompatible with the right to informational self-determination if a legal order should permit a societal structure where the citizen could not be sure who knows something about him, what they know when this information will be released, and what occasions the release of this data.”
21. Now, it is possible for reasonable minds to disagree on what the foundations of privacy rights, in information and otherwise are. In a greatly edifying article in the Yale Law Journal, James Whitman, the noted comparativist makes the case that while the Anglo-American world constructs privacy as a liberty claim, the Continent sees it as a dignitarian issue.
22. Much more recently, the Indian Supreme Court treats the constitutional right to privacy in much the same spirit, defining it as “the right to choose and specify”.
23. To think about information privacy in the pandemic, it is worth remembering one feature of the decision in Big Brother Watch v. The United Kingdom which the Grand Chamber of the European Court of Human Rights handed down last week. That case concerned the permissibility of bulk communications interception: The Court held that the existence of “end-to-end safeguards” including proper authorisation by law and independent oversight are a sine qua non to preventing abuse of the data being collected and also to upholding its compatibility with the right to privacy.
Information Privacy in the Pandemic I: Digitising Public Health
24. At the beginning of the pandemic, last April, one article in The Washington Post read: “governments around the world are trying a new weapon against coronavirus: your smartphone”
25. The new innovation was a smartphone-based app that would automate a process that is central to communicable disease control: contact tracing and exposure notification, and so yield sweeping results in the fight against the pandemic. This would involve the collection of vast amounts of identity, health and location data by the state, often through a private vendor who develops the technology for it.
26. Though these apps have been deployed in numerous nation states since the pandemic began, no empirical and global scale study of their successes or failures has yet been produced, though no state has come forward, despite their initial fanfare, to claim that these measures have had any decisive effect on managing the pandemic.
27. Frequently during the pandemic, we have been offered binaries: the choice between privacy and public health is one example. The choice between life and livelihood is another. Across the world, in India as well as here, that binary was embodied in the rhetoric around contact tracing apps. Though these binaries proliferate in periods of crisis, there is a need for rights lawyers to resist them. They distract from the need for close scrutiny of the imagined efficacy of a measure that would violate privacy against the actual efficacy. The difference between the two is decisive as to whether the measure would pass scrutiny under human rights law as being necessary in a democratic society.
28. Also, choices like these are no choices at all, and it is difficult to speak of notice and consent in data protection terms when there is no concrete information to notify and the choice is in fact a false one. As the Lancet put it last year:
“Leveraging digital contact tracing technologies can change the course of the COVID-19 pandemic. Such technologies must robustly support democratic principles of privacy to maintain public trust and to enable individuals to make informed choices to help combat the pandemic.”
29. First, there is the critique of techno-solutionism. Coined in the year 2013, it connotes the idea that in complex public problems, it is easy to assume that a new technology to manage surface symptoms will yield a structural answer or a solution to the underlying disease. As the Brookings Institution puts it:
“Enshrining platforms and technology-driven “solutions” at the centre of our pandemic response cedes authority to define the values at stake and deepens pre-existing patterns of inequality in society. It also ignores platforms’ role in fostering and profiting from the disinformation that hobbles collective efforts to safeguard the public’s health. Effective, equitable pandemic response demands deeper, more structural reforms regulating the platforms themselves.”
30. Relatedly, there is the idea of technology theatre. This involves focusing public attention on elaborate, ineffective procedures which have the effect of masking the absence of a solution to a complex problem. Scholars in data justice have in fact developed this terminology to describe the attempt to adopt contact tracing apps and like digital-first responses as shortcuts to answering the complex public health problems created by the pandemic.
31. Next, there are the public-private partnerships forged in the heightened pressure and with all the lack of deliberation and scrutiny that accelerated emergency timelines demand. These apps are technologies contracted for in opaque circumstances and built in a hurry.
32. Finally, there is the problem of function creep. Article 5 of the GDPR includes as principles both the requirement to collect minimal data and to clearly specify and limit the purposes to which the data collected will be applied. The ad hoc basis on which data collection took place in many states has raised the serious concern that the data, once collected, will be applied not to the limited purpose of pandemic management but to an expanding list of purposes.
33. In the ordinary course, such collection would have been supported by legislation, which could have included data deletion requirements, sunset clauses and clear lines of remedy for overreaching the initial purpose of collection.
Access to Justice
34. If human rights must have weight and value in practice, two things are necessary:
First, where there is some interference with the right, it must be capable of being recognized as such and of being taken to court: this is the idea of justiciability. The justice system is fundamental to the relationship between the state and its citizens. It is the source of redress and of punishment. Its quality must not be compromised, even when major challenges threaten its usual modes of operation.
Too often, even when rights exist on paper and are justiciable, enforcement is weak.
This brings us to our second desideratum: there must be access to justice. In other words, it must, as a matter of fact, be possible for any person injured to be able to approach the court.
35. Access to justice has both intrinsic and instrumental value. Accordingly, it is both a basic human right in its own terms and a means to protect other universally recognized human rights. Respect and protection of human rights can be guaranteed only when there is the availability of effective judicial remedies. In this sense, to recall Bingham’s catalogue, it is an essential component of the rule of law.
36. Hearings rapidly moved online, new temporary courtrooms were opened and buildings were adapted to facilitate social distancing. But recognition of these significant efforts must not obscure the scale of the challenges now facing our courts and tribunals.
37. The justice system should be sufficiently resilient to function well when confronted with external threats. Yet justice in India was placed under significant strain in the decade preceding the pandemic. As a result, our courts and tribunals were not well placed to respond to the unprecedented challenges posed by COVID-19.
38. The ICCPR’s Article 14 guarantees procedural fairness. Article 2 establishes the right to an effective remedy. Article 26 reiterates the guarantee of non-discrimination. Through its General Comment 32, the U.N. Human Rights Committee has interpreted these provisions to ensure the right to counsel in civil cases.
39. The U.N. Special Rapporteur on the Independence of Judges and Lawyers notes that “legal aid is an essential component of a fair and efficient justice system founded on the rule of law... it is also a right in itself and an essential precondition for the exercise and enjoyment of a number of human rights.”
40. Interestingly, it was not until December 2012 that the UN’s General Assembly unanimously adopted the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, the first international instrument on the right to legal aid. These Principles and Guidelines establish minimum standards for the right to legal aid in criminal justice systems and provide practical guidance on how to ensure access to effective criminal legal aid services.
41. The justice system should be sufficiently resilient to function well when confronted with external threats. Yet justice in India was placed under significant strain in the decade preceding the pandemic. As a result, our courts and tribunals were not well placed to respond to the unprecedented challenges posed by COVID-19.
42. Reduced funding for the justice system in the preceding decade left our courts and tribunals in a vulnerable condition going into this period of crisis. Without adequate resources, technology or guidance, our much-cherished justice system remains at risk.
43. Of course, lockdowns and social distancing have stalled the wheels of justice in very serious ways. Courts have had to go online, and though they have been tenacious in operating at some scale through remote hearings despite the pandemic, the pandemic has imperilled access to justice not only in limiting courts’ reach but also in the limiting access to counsel.
44. Of course, we know that a lack of effective indigent defence services often results in a denial of full access to justice for citizens. But lawyers and legal advice is crucial not only in contentious cases but also in transactional ones, such as in ensuring the proper functioning of the welfare state.
45. When physical access to the legal system – including crucially to organised pro bono legal advice – is suspended, it is difficult to fathom or measure the injustices that have persisted. Contexts where this is true include those at risk from domestic abuse, mental health, immigration, those in economically precarious circumstances which threaten their access to food, shelter and medical care, children and the elderly.
46. The learning from the pandemic in relation to access is simple and it is correctly noted in the House of Lords Select Committee on the Constitution’s Report of March this year on COVID-19 and the courts: extraordinary and crisis circumstances demand continuing access to the courts to be maintained, even more so than ordinary times. Unprecedented though the pandemic has been, it is a failing for the justice system to not have been fully accessible, particularly to the marginalised. Digitisation, though useful, is no substitute for structural reforms that would mitigate the effects of high pendency and uneven investments in pro bono efforts. As I understand the report, any reforms in favour of access to justice must necessarily begin by focusing on the resiliency of justice delivery mechanisms now and for future moments of crisis.
47. Re-emerging from a crisis affords us a valuable opportunity to break with the past and imagine our world anew. We stand at a gateway between one world and the next. By way of conclusion, let me only take this moment to call on you all to consider the prospects at this moment for reconstruction and reimagination in our legal system, and to take ownership of the work to bring these changes about as you go forth through university and thereafter.
48. We need to recall the Universal Declaration of Human Rights, which enshrines the key principles of equality before the law and the presumption of innocence, as well as the right to a fair and public hearing by an independent and impartial tribunal, along with all the guarantees necessary for the defence of anyone charged with a penal offence, other minimum guarantees and the entitlement to be tried without undue delay.
49. As the Select Committee of the House of Lords perceptively observed:
“The difficulties faced by the justice system during the pandemic have been exacerbated by a lack of data across the court service. High quality, up-to-date data are necessary to ensure the effective management of the courts service and enhance trust in the justice system more broadly. There are real concerns that remote hearings are disadvantaging vulnerable and non-professional court users, as well as those with protected characteristics. But the requisite data to assess and address these concerns are not available. We recommend that HMCTS sets out specific deadlines and targets for the collection, evaluation and publication of additional court data. Of particular priority are data that will enable HMCTS and the public to assess the impact of remote hearings on vulnerable court users, including whether remote hearings are having any impact on case outcomes.”
50. “The right of effective access to a court is deeply embedded in [English] Constitutional Law. The central idea was expressed in Chapter 40 of Magna Carta in 1215 and remains on the statute book in the version issued by Edward I in 1297: “we will not deny or defer to any man either Justice or Right.” These words are a guarantee of access to courts which administer justice fairly and promptly.”
51. Access to justice underpins the fundamental constitutional principle that is the rule of law. As Lord Neuberger of Abbotsbury, former President of the Supreme Court of the United Kingdom, explained:
“The rule of law requires that any persons with a bona fide reasonable legal claim must have an effective means of having that claim considered citizens must have access to the courts to have their claims, and their defences, determined by judges in public according to the law.”
52. As Lord Reed of Allermuir, President of the Supreme Court, put it:
“People and businesses need to know, on the one hand, that they will be able to enforce their rights if they have to do so, and, on the other hand, that if they fail to meet their obligations, there is likely to be a remedy against them. It is that knowledge which underpins everyday economic and social relations”.
53. Dr Natalie Byrom, Director of Research at the Legal Education Foundation and lead author of a review of the operation of the courts early in the pandemic, said that the senior courts, “which are better supported and resourced, have been much better able to adapt to arrangements under Covid” whereas the “county and district courts, which deal with the majority of cases, and those litigants who are most vulnerable, have had a more difficult time”. This has equal relevance to India.
54. The Committee also notes more prosaic but critical problems relating to digital literacy in the courts, recognizing that “[i]t is vital that those working in courts are comfortable with the technology used for remote hearings, and that they adopt a consistent approach to its implementation and use.”
55. As to the new digital turn in justice delivery by the courts, we must accept that it is here to stay. As the Select Committee recognizes:
“Remote proceedings were, and continue to be, necessary to maintain the administration of justice during the pandemic. In appropriate cases, audio and video hearings have the potential to enhance access to justice by increasing the number of hearings that can take place.”
“The pandemic has highlighted the necessity for courts and tribunals to be furnished with adequate funding and technology. The modernisation and digitisation of courts and tribunals has the potential to strengthen the rule of law by improving access to the law and the timely delivery of justice.”
56. In the new digital era, we must continue our commitment to access to justice, and remember that:
“Access to justice is fundamental to the rule of law. It requires that the protection of the law be accessible to all. Legal processes should also be open and transparent to allow for scrutiny of proceedings and enhance public confidence in the justice system.”
“Operational changes introduced in response to the pandemic should not be regarded as irreversible where they have risked undermining access to justice, open justice or consistency in the application of the law.”