By Aditya Krishna
Introduction
The fight against COVID-19 in India has been severely stifled by individuals violating the quarantine and lockdown enforced. There have been many cases of people either absconding from quarantine centers (which have been criticized for being unhygienic and mismanaged) or disregarding their home quarantine.[1] In the wake of the ongoing global pandemic, Dr. K. Sudhakar, the Karnataka Medical Education Minister, passed a direction through a press release dated 30-03-2020, according to which individuals who were home quarantined due to the COVID-19 pandemic had to send ‘selfies’ of themselves every hour to the government, to prevent being sent to a government-created mass-quarantine centres.[2] As per the press release even those who sent fake pictures to mislead the ‘government photo verification team’, who were tasked with monitoring them, would be sent to the said mass-quarantine centre. The only exception to the rule was between 10 pm to 7 am which was to be considered the sleeping time.
To aid in the process the Karnataka government created a mobile app called ‘Quarantine Watch’,[3] the use of which is made compulsory for those who are home quarantined, to update their location every half hour. Along with being used to track the movements of the user,[4] the app also attaches the location of the user (via GPS) to the selfies sent in by them.[5] Additionally, the government has also released an app that divulges the addresses of those quarantined in the state.[6] While this is just one example of the new digital surveillance methods employed to combat the spread of the disease, it’s interesting to note that other states have also followed suit.[7] In addition to this, the Karnataka government has also published the personal details (including the house numbers and addresses) of about 19,240 individuals quarantined after traveling abroad, on the Karnataka Ministry of Health and Family Welfare Services website.[8]
While most people have not raised objections to the measures implemented, these new measures are highly invasive and risk the stigmatisation and harassment of those who are quarantined. This also raises the important issue of balancing the two rights which are at stake, namely the right to privacy and the right to health.
Justification Under Right to Health
The right to health, as recognized by the supreme court in the case of Consumer Education & Research Centre and Others v. UOI,[9] is integral to the right to life as enshrined under Article 21 of the constitution.[10] As per Paschim Banga Khet Mazdoor Samity & Ors. v. State of West Bengal,[11] and State of Punjab v. Mohinder Singh Chawla,[12] the state is constitutionally obligated under Article 21 to provide adequate medical assistance and health care facilities to every individual. In line with this constitutional obligation, the state in this case is compelled to provide medical facilities to infected individuals and take steps to prevent the spread of the virus.
In light of how pestilential the virus is, it has been considered pertinent to be informed about both suspected and infected individuals to help people by preventing contact with them and mitigating the risk of being infected.[13] The government with a similar intention used the protection of the fundamental right to health, and the right to live in a healthy environment,[14] as a justification for the steps undertaken by them under the garb of public interest. However, this begs the question of whether such a denial of the fundamental right to privacy and dignity of the quarantined individuals through the surveillance of their movements and divulgence of their personal information is permissible or not?
Jurisprudence Prior To Puttaswamy
Prior to the right to privacy judgment,[15] two cases, namely that of Smt. Lucy R. D’Souza And Etc. v. State of Goa and Others[16] and Mr X v. Hospital Z,[17] dealt with the similar issue of contesting fundamental rights relating to issues of public health and safety. The former was based on a contestation between the right to freedom of movement vis-a-vie right to health, where the petitioner challenged the constitutionality of Section 53(1)(vii) of the Goa, Daman and Diu Public Health Act, 1985,[18] which authorized the state to isolate individuals found to be positive for AIDS and the latter was based on the contestation between the erstwhile right to privacy and the right to health, where the petitioner challenged the disclosing of information pertaining to his AIDS diagnosis without his consent by his doctor.
What is noteworthy is that in both of the above-mentioned cases, the courts held that in such scenarios, where public health is at stake, an individual’s rights and liberties come secondary to the right which is more in concordance with the public interest. Hence in both cases, the courts upheld the validity of the actions in line with the Right to health. While the current government’s actions are justified under the older jurisprudence, the policies adopted by the Karnataka government need to be reviewed in light of the more recent doctrines laid down by the supreme court in the Puttaswamy cases.
Right to Privacy and Current Scenario
Right to Privacy is a fundamental right under Article 21 of the constitution. As per the Puttaswamy judgment, under the right to privacy, every individual has the right to informational self-determination,[19] which entails the right of the individual to determine when and to what extent their private information may be disseminated to others. Hence in the current case, the actions of the Karnataka state government in disclosing the private data of individuals is prima facie in violation of their right to privacy. Nonetheless as the right to privacy much like other fundamental rights is not absolute, the legality of the said policies needs to be gauged using the guidelines laid down through the Puttaswamy judgments.
As per the Puttaswamy judgement,[20] there must exist a valid legislation permitting the said infringement, for a state to legitimately curtail an individual’s rights (legality test). Additionally, as stated in the Modern Dental College judgment,[21] and affirmed in Puttaswamy,[22] Internet and Mobile Association of India v. RBI [23] and Anuradha Bhasin v. UOI,[24] such infringements must be proportional in nature and in line with the proportionality doctrine. The four limbs of the proportionality doctrine as held in the Puttaswamy judgment by justice Sikri are: [25]
- The measure employed curtailing a right must have a legitimate aim. (legitimate aim test)
- It must have a rational nexus with the aim. (rational nexus)
- It must not have a lesser restrictive but equally effective alternative. (necessity test)
- it must not disproportionately impact the right holder. (balancing test)
In the current case neither the National Disaster Management Act, 2005,[26] nor the Epidemic Diseases Act, 1897 [27] have any provisions that allow the government to disclose an individual’s personal information. Hence the current actions of the Karnataka government fail the legality test laid down by Puttaswamy. The latest direction being communicated through a press release also disqualifies it from constituting an executive action having any legal backing.
Further, while public health is a valid ground to curtail the right to privacy (as held in Puttaswamy), as stated by Justice Chandrachud, the same can only be considered a legitimate ground to do so if the state “preserves the anonymity of the individual” while doing the same.[28] Hence it also becomes unclear how the disclosure of the said private information fulfils the ‘maintaining public health’ aim of the state. Thus, failing the rational nexus test.
Additionally, the Karnataka government clearly did not implement the least restrictive means in curtailing the right as is evident from the case of other countries,[29] where procedural safeguards and privacy-preserving features, such as data anonymisation, time bars on the usage of data and non-utilization of geolocation, were employed while implementing similar digital surveillance methods. Hence the same also fails the necessity test (as there exist equally effective and lesser restrictive alternatives).
Lastly, the steps taken by them would also lead to the stigmatisation and harassment of the individuals infected and quarantined. This causes it to fail even the balancing test, as it disproportionately impacts the right holders. As seen from the cases of AIDS patients in India,[30] disclosure of the patients’ identities can lead to them being subjected to discrimination and ostracization in society. The right to non-disclosure of one’s identity was accordingly also made a right provided to AIDS patients in recent times. By not providing the same in this case and by further publishing the personal details of the suspected and infected individual, the government is disproportionately impacting the right of such individuals. Thus, the actions of the Karnataka government can be deemed to be disproportionate and unconstitutional.[31]
Conclusion
While there is no doubt that we are living through an unprecedented crisis, there still is a need to keep a check on governmental actions to prevent an abuse of power. In this case by disclosing the personal information of these individuals and exposing them to possible stigmatisation/discrimination, the state has not just violated their right to privacy but also their right to live with dignity and other allied rights. While it may seem that the current pandemic calls for such limitations on the rights of an individual, it is also important to keep in mind the proportionality aspect to ensure that the measures taken are reasonable and constitute legitimate state action. In light of the current situation, it becomes quite apparent that the main need of the hour is a more comprehensive data protection law to help prevent the abrogation of the right to privacy in such cases.
The Author is a Second Year BA LLB (Hons.) student at Jindal Global Law School, Sonipat.
[1] Gulam Jeelani Isha Gupta, Coronavirus runaways pose risk to society, lead to unnecessary panic India Today (2020), https://www.indiatoday.in/mail-today/story/coronavirus-runaways-pose-risk-to-society-lead-to-unnecessary-panic-1656684-2020-03-18 (last visited Apr 15, 2020).
[2] Press Trust of India, Karnataka govt demands hourly selfies from those in home quarantine India Today (2020), https://www.indiatoday.in/india/story/karnataka-govt-demands-hourly-selfies-from-those-in-home-quarantine-1661654-2020-03-31 (last visited Apr 15, 2020).
[3] Quarantine Watch – Apps on Google Play, Google, https://play.google.com/store/apps/details?id=com.bmc.qrtnwatch&showAllReviews=true (last visited Apr 15, 2020).
[4] Kamala Thiagarajan, An Indian State Tells Quarantined Folks: ‘A Selfie An Hour Will Keep The Police Away’ NPR (2020), https://www.npr.org/sections/goatsandsoda/2020/04/12/828843214/an-indian-state-tells-quarantined-folks-a-selfie-an-hour-will-keep-the-police-aw (last visited Apr 15, 2020).
[5] India Today Web Desk, All those home quarantined in state need to send selfies to govt every hour: Karnataka Minister India Today (2020), https://www.indiatoday.in/india/story/all-those-home-quarantined-in-state-need-to-send-selfies-to-govt-every-hour-karnataka-minister-1661517-2020-03-30 (last visited Apr 15, 2020).
[6] Rohini Swamy et al., This is how Karnataka govt will keep track of nearly 15,000 people under home quarantine The Print (2020), https://theprint.in/india/governance/this-is-how-karnataka-govt-will-keep-track-of-nearly-15000-people-under-home-quarantine/388870/ (last visited Apr 15, 2020).
[7] ETB Sivapriyan, Coronavirus: TN tracks movements of home quarantine people through a mobile app Deccan Herald (2020), https://www.deccanherald.com/national/south/coronavirus-tn-tracks-movements-of-home-quarantine-people-through-a-mobile-app-817853.html (last visited Apr 15, 2020). ; Pti, Gujarat launches coronavirus app to track home-quarantined persons The Economic Times (2020), https://economictimes.indiatimes.com/news/politics-and-nation/gujarat-launches-coronavirus-app-to-track-home-quarantined-persons/articleshow/74848344.cms?from=mdr (last visited Apr 15, 2020).
[8] Naveen Menezes & Bellie Thomas, Government publishes details of 19,240 home-quarantined people in India to keep a check Bangalore Mirror (2020), https://bangaloremirror.indiatimes.com/bangalore/others/government-publishes-details-of-19240-home-quarantined-people-to-keep-a-check/articleshow/74807807.cms (last visited Apr 15, 2020); distwise-home-quarantive, Government of Karnataka, https://karunadu.karnataka.gov.in/hfw/kannada/Pages/distwise-home-quarantive.aspx (last visited Apr 15, 2020).
[9] Consumer Education & Research Centre and Others v. Union of India & Others, (1995) SCC (3) 42.
[10] INDIA CONST. art. 21.
[11] Paschim Banga Khet Mazdoor Samity & Ors. v. State of West Bengal, (1996) 4 SCC 37.
[12] State of Punjab v. Mohinder Singh Chawla, (1997) 2 SCC 83.
[13] Srikanth RP, Why India must use mobile tracking apps, facial recognition and wearables to enforce home quarantine for asymptomatic carriers of Coronavirus Express Computer (2020), https://www.expresscomputer.in/editorials/why-india-must-use-mobile-tracking-apps-facial-recognition-and-wearables-to-enforce-home-quarantine-for-asymptomatic-carriers-of-coronavirus/51769/ (last visited Apr 15, 2020).
[14] Common Cause v. Union of India and Others, AIR 1996 SC 929.
[15] Justice K. Puttaswamy v. Union of India, 2017 (10) SCALE 1.
[16] Smt. Lucy R. D’Souza And Etc. vs State of Goa and Others, AIR 1990 Bom 355.
[17] Mr X v. Hospital Z, 1998 (6) SCALE 230.
[18] The Goa, Daman and Diu Public Health Act, 1985, Act no. 1 of 1962.
[19] Gautam Bhatia, The Supreme Court’s Right to Privacy Judgment – IV: Privacy, Informational Self-Determination, and the Idea of Consent Indian Constitutional Law and Philosophy (2017), https://indconlawphil.wordpress.com/2017/08/30/the-supreme-courts-right-to-privacy-judgment-iv-privacy-informational-self-determination-and-the-idea-of-consent/ (last visited Apr 15, 2020).
[20] Justice K. Puttaswamy v. Union of India, 2017 (10) SCALE 1.
[21] Modern Dental College & Research Centre v. State of Madhya Pradesh & Ors, (2016) 7 SCC 353.
[22] Justice K. Puttaswamy v. Union of India, 2017 (10) SCALE 1.
[23] Internet and Mobile Association of India v. RBI, Writ Petition (Civil) No.528 of 2018.
[24] Anuradha Bhasin v. Union of India, Writ Petition (Civil) No. 1031/2019.
[25] Quintype-Migrator, Proportionality Test for Aadhaar: The Supreme Court’s two approaches Bar and Bench – Indian Legal news, https://www.barandbench.com/columns/proportionality-test-for-aadhaar-the-supreme-courts-two-approaches (last visited Apr 15, 2020).
[26] National Disaster Management Act, 2005, Act No. 53 of 2005.
[27] Epidemic Diseases Act, 1897, Act No. 3 of 1897.
[28] Justice Chandrachud: “If the State preserves the anonymity of the individual it could legitimately assert a valid state interest in the preservation of public health to design appropriate policy interventions on the basis of the data available to it.” At para 182 pg. 256 of the judgment.
[29] Will privacy be one of the victims of COVID-19?, CEPS (2020), https://www.ceps.eu/will-privacy-be-one-of-the-victims-of-covid-19/ (last visited Apr 15, 2020); Tang See Kit, Singapore launches TraceTogether mobile app to boost COVID-19 contact tracing efforts CNA (2020), https://www.channelnewsasia.com/news/singapore/covid19-trace-together-mobile-app-contact-tracing-coronavirus-12560616 (last visited Apr 15, 2020); David, To Track Coronavirus, Israel Moves to Tap Secret Trove of Cell-phone Data The New York Times (2020), https://www.nytimes.com/2020/03/16/world/middleeast/israel-coronavirus-cellphone-tracking.html (last visited Apr 15, 2020).
[30] Know Your Rights: National AIDS Control Organization: MoHFW: GoI, Know Your Rights | National AIDS Control Organization | MoHFW | GoI, http://naco.gov.in/know-your-rights (last visited Apr 22, 2020), non-disclosure of the patient’s names was pronounced as the right of non-disclosure for aid patients.
[31] As it is disproportionate, it is an unjustified curtailment of a fundamental right and hence the actions of the government are unconstitutional.
NUALS Law Journal 