Opposition parties and legal experts have termed the move a serious breach of privacy, citing the Supreme Court’s 2017 judgment in the K S Puttaswamy versus Union of India case.
“The decision to retrieve CDRs of infected citizens is a gross infringement on the right to privacy. The right to privacy of an individual has been explained in detail in the Puttaswamy case by the Supreme Court. The police can seek information in specific crime cases, but people cannot be put under surveillance in this manner. This is not a police state,” former state law secretary B G Hareendranath said.
The police justified the move as a necessary evil to fight the pandemic. CM Pinarayi Vijayan added to the outrage by admitting that “it has been going on for a few months now”.
In a circular to all senior police officers on Wednesday, Kerala DGP Loknath Behera said the ADGP (intelligence) and the ADGP (headquarters) should be in touch with BSNL to ensure that CDRs are promptly made available when necessary. “They will also take up the matter with Vodafone, as in some places they are delaying sending CDRs,” the circular states.
Sources said some telecom service providers had been hesitant in sharing CDRs.
Vijayan said the data collected by the police won’t be used for any other purpose other than mentioned. “Law enforcement agencies can collect such details. This is the best means for contact tracing. The data won’t be used for any other purpose,” he said.
The police said CDRs were their best bet in drawing up route maps of Covid-positive individuals with precision, although there is no provision in the law for sourcing and checking call records of an individual for medical surveillance. In 2016, the ministry of home affairs had issued guidelines to all states on seeking CDRs under the statutory provisions contained in Section 92 of the Code of Criminal Procedure, 1973, or Section 5(2) of the Indian Telegraph Act, 1885, read with Rule 419A of the Indian Telegraph (Amendment) Rules, 2007.
The law is clear on this — unless it is for a matter of national security or criminal investigation, CDRs are not allowed to be retrieved.
Leader of the opposition Ramesh Chennithala told TOI, “This is a very sensitive issue that can lead to a serious breach of the privacy of individuals. What the opposition demands is that retrieving CDRs should be limited to contact tracing alone, and the data should be kept confidential. The government should be able to ensure it. Let us see how this turns out.”
Union junior external affairs minister V Muraleedharan said retrieving CDRs for the purpose cited by the police and the state government was “unheard of”. “It is also a contradiction that the same government which vouches for data privacy is doing the opposite.”
In the Puttaswamy case, the Supreme Court had ruled that recognising a zone of privacy was but an acknowledgement that each individual must be entitled to chart and pursue the course of development of personality. “Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity in creating a zone of solitude. Privacy protects the individual from the searching glare of publicity in matters which are personal to his or her life,” the judgment said.
In the case of telephone interception, there is a more intricate procedure in which permission is granted by the home secretary, and the matter is further reviewed by a committee comprising the chief secretary, law secretary and secretary of the general administration department.
However, some experts point that even though CDRs cannot be retrieved by the police without the consent of a person, in the event of a pandemic, there is an implied consent from a citizen to do so for the common good. “Unless, in this specific issue, a person specifically says ‘no’ to his CDR being retrieved and used for preparing route maps, it is implied that he has given consent to it. But if he denies, the police cannot do so, unless he has committed some grave crime,” former state police chief Jacob Punnoose said.
Prior to the police taking over contact tracing and preparing the route maps of Covid-19 patients, the health department used to rely on voluntary disclosure on who the person met and the places she or he visited.