Publishing names and addresses of quarantined persons: The constitutional question of Privacy during the Coronavirus pandemic

Some rights like the right to life are so intrinsic that they cannot be subject to derogations even in exigencies. The right to life further includes a plethora of other rights that have been judicially recognised as being part of the right to life and are treated at par with it. One of recent additions was the right to privacy.

The jurisprudence concerning this issue took a huge leap when a nine-judge bench of the Supreme Court, in the case of Justice KS Puttaswamy v. Union of India, read the right to privacy into Article 21 of the Constitution. Since this right has been held to be stemming out of the right to life, it has scope and limitations akin to that of the right to life.

Given that by the virtue of 44th Constitutional Amendment Act, 1976, the right to life cannot be suspended even in the cases of national Emergency, the right to privacy also enjoys this immunity.

However, in these troubled times, when there is no proclamation of national emergency or any Emergency whatsoever, and there is chaos, fear and a nationwide lockdown due to the outbreak of Coronavirus, the question is whether the right to privacy can be suspended or undermined and if no, can it still be limited in the interest of general public?

It also deems consideration as to what kind of limitations would be constitutionally permissible, especially when the right to privacy has acquired the status of a fundamental right.

Consider the recent action of the Karnataka Health and Family Welfare Department, which had published the addresses including the house numbers, street numbers and localities of 14,910 people who have been quarantined because they had come from abroad, on its official website.

This list also included the countries that they had recently visited. Although the names and phone numbers of these people had not been released, the information released was also detrimental to their privacy and in fact, safety.

Legally speaking, the patients had a right to privacy with regard to their personal details even before the Supreme Court had recognised the right to privacy in the Puttaswamy case. It was recognised by the Apex Court as early as in 1998, in the case of Mr. X v. Hospital Z. The Court opined in this case that patients had the right to confidentiality and privacy as regards their personal details. However, this right was not absolute and could be overlooked when there was a larger public interest.

Further, Regulation 2.2 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, reads as under:

“defects in the disposition or character of patients observed during medical attendance should never be revealed unless their revelation is required by the laws.”

It further mentions that doctors can also reveal such information when there is a larger public good. The Union Ministry of Health had also released the Charter of Rights of Patients, 2017 which also recognizes the public interest exception to the right to confidentiality.

However, the pertinent question is that whether the Puttaswamy ruling would have any bearing upon the interpretation or application of these laws concerning patient confidentiality?

In the Puttaswamy case, it was established that the right to privacy was intrinsic to right to life. However, it was not absolute and was subject to reasonable restrictions. The Court further went on to lay down a three-pronged test to see if a restriction being imposed on someone’s right to privacy was reasonable or not. As per this test, the restriction should be legal, it should be proportional to the object that is sought to be achieved by the law, and it should have a legitimate aim.

The Karnataka health department’s action ought to be tested against the touchstones of the aforementioned three fold test because the unwritten right to privacy and its limitations has been read into Article 21. As per Article 13 (2), the state’s actions cannot be inconsistent with any of the Articles - including Article 21 - that are enlisted in Part III of the Constitution.

Concerning the issue of legality, the Code of Ethics Regulations allow for revelation of confidential information of the patient by the doctors when there is a danger to the public health, which was also the case here. However, no law, including the Epidemic Diseases Act, 1897, empowers the government to reveal such information on its official website. So, the actions of the Karnataka health department has no backing of law.

Concerning the issue of proportionality, the action of the government should be proportional to the object. Concerning this aspect, Justice Sanjay Kishan Kaul observed in the Puttaswamy case that the extent of restriction is supposed to be proportional to the need for such restriction.

In the given case, the revelation of personal information of these people on the basis of the assumption that some of them might be infected and out of those possible infected people, some might disregard the order to quarantine themselves, and some of these people who step out of their houses might infect others, is to be juxtaposed with their right to privacy, which is definitely being violated.

If both the countervailing interests are weighed against each other as per the principles of proportionality, it seems very unfair to put the privacy, life and liberty of these quarantined people in such danger. This becomes more worrisome as many of these people have written to the Karnataka government saying that they have been facing ostricization and they are fearing eviction since the time their details have been circulated.

Here, the violation of their right to privacy is having a domino effect on their safety. So, the action under question fails the test of proportionality.

If the object of the government was to make sure that these people do not violate the quarantine restrictions, it could have counselled them to stay indoors and taken action against them even up to the extent of framing criminal charges for spreading deadly diseases under Sections 269 and 270 of the Indian Penal Code, If and only if, they refuse to obey the government orders.

But, on the contrary, blatantly violating their right to privacy and putting their life and dignity in jeopardy, just due to the fear that they might violate the quarantine restrictions which might lead to the spread of the disease , was grossly disproportionate.

Concerning the issue of legitimate aim, Justice DY Chandrachud in his opinion in the Puttaswamy judgment, said that the restriction so placed should be reasonable and non-arbitrary and it should be directed towards some legitimate state aim.

If we ignore the first two parts of the test, it can be argued that the names were published in public interest to contain the spread of Coronavirus and thus, there was a legitimate aim to protect public health. However, given the fact that the means employed by the government were not legal or proportional, they amount to a breach of privacy even if they were directed towards a legitimate aim.

Lastly, it is to be noted here that these people have just been quarantined and have not been tested positive. Thus, this unwarranted surveillance by the state, when it has sufficient means to find the location of the people who break the quarantine, unnecessarily stigmatises them and is constitutionally impermissible.

Safeguarding, upholding and claiming rights in ordinary circumstances is still easy, but extraordinary times actually check the Constitution’s potential to safeguard, the state’s potential to uphold, and the citizenry’s potential to claim.

The state should take the Puttaswamy ruling seriously and strive to uphold the sanctity of the constitutional rights of citizens even in these troubled times. For that will be the hallmark of a committed constitutional democracy, which can stand straight in this face-off against one of the greatest challenges to humanity.

The author is a student of National Law School of India University, Bangalore.