The Author, Harsh Khanchandani is 1st year student pursuing BBA LLB from Symbiosis Law School,Pune.
INTRODUCTION
With the spread of coronavirus on the rise, there have been various steps taken by the Government of India to fight against the pandemic. Ranging from declaring Janata curfew, to using drones to monitor social distancing, to development of technological platforms such as ‘Aarogya Setu’,the government has left no stone unturned. In the wake of the ongoing pandemic, information on COVID patients has found its way into the public domain. Recently the government of Karnataka published a list of people in quarantine as suspected carriers[i]. Similar was seen with district administration in Mohali and the state of Rajasthan[ii]. This may seem right from the perspective of a common man, but the same can have an impact on an individual's privacy and liberty. This data was collected by Union ministry of health and family welfare as per there mandate to fill self-declaration form which includes name, address, phone number, and other personal details[iii]. The problem remains, however, whether the publication of the quarantine list infringes the right to privacy or can be justified under public interest.
Although most people have not raised concerns to the measures implemented, these new measures are highly restrictive and may lead to abuse and harassment of those who are being quarantined[iv]. In the course of this article, the author has analyzed how such steps taken by authorities has breached the privacy of individuals.
RIGHT TO PRIVACY: PASSING THE THREEFOLD TEST
Supreme Court's decision in Justice K. Puttaswamy v. Union of India on the right to privacy is fairly clear[v]. Just like it interpreted our Fundamental Rights in the past to include the right to education; to livelihood; to water, food, and shelter, among many others, it has now interpreted them to include a right to privacy. This judgment also states for right to informational self-determination, which implies the individual's right to decide when and to what extent their personal information may be disseminated to someone else[vi]. In this context, steps taken to disclose personal details of individuals can prima facie be said as a violation of the right to privacy. Apart from this, India is a signatory to ICCPRwhich guarantees right to privacy and imposes obligation on the state to protect individuals from any arbitrary interference[vii].
Nevertheless, the Court ruled that it is not an absolute right, and any interference into one's life and personal freedom must draw the standard that is just, equitable and rational. It sets out a tripartite test to determine whether a State action alleged to infringe the privacy of a person is legitimate. Similar tests have been adopted by International bodies such as The Human Rights Committee in the case of Madafferi v Australia[viii] and European Court Of Human Rights(ECtHP) in the case of Oleksandr Volkov v Ukraine.[ix] Elements of this test are:
- LEGALITY
Legality in general terms refer to the existence of law. In the current scenario two provisions are said to be invoked, Infectious Disease Act of 1897 and the National Disaster Management Act of 2005. A mere casual reading of the Infectious Diseases Act of 1897 and the National Disaster Management Act of 2005 reveals that no clause of these Acts requires or legitimizes the public database to publish personal data of individuals.
With no explicit data protection laws in place, the collection and release of a person's private information in the public domain without their permission is a concern and cannot be tagged as necessary measures under Section 6 of the Disaster-Management Act[x] for central government and Section 2(1) of the Epidemic Disease Act[xi] for the state government to prevent the outbreak.
- NEED, DEFINED IN TERMS OF LEGITIMATE STATE AIM
Since the judgement doesn't provide a comprehensive list of aims that would qualify as "legitimate", the expressed intent of the state must be examined for "manifest arbitrariness" in each case. In the current situation Public health and safety can be constituted as a legitimate state aim as observed by Justice Chandrachud in Para 180 of the judgement[xii]. Further, this is also recognized as a legitimate ground globally. For instance, Article 8 of the European Convention On Human Rights, which declares right to privacy not to be absolute and is subject to action taken legally for protection of health. Similarly, Article 29 of the Universal Declaration Of Human Right classifying the right to privacy as a restrictive right in order to meet general welfare in a democratic society.
Prior to jurisprudence given in Puttaswamy’s judgement such observation was taken into consideration in Mr. X v Hospital Z[xiii] and Smt. Lucy R. D’Souza And Etc. v. State of Goa and Others[xiv] where petitions were filed challenging disclosure of information of an AIDS patient in public violating the rule of confidentiality. The courts in their decision considered individual’s rights as secondary when public health was said to be on stake. This suggests for the existence of a legitimate state purpose but the overall validity will certainly depend upon how such purpose is pursed.
- PROPORTIONALITY
The third prong of the Puttaswamy test necessitates state action to be essential and proportionate to the legitimate aim pursued. Even though it constitutes a legitimate state aim however state actions still remain unjustifiable. Likewise, all this could have been achieved in an anonymized manner. Justice Chandrachud has said in Para 182 of the judgement, “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.”[xv]. Even the Personal Data Protection Bill 2019, which is pending before the parliament aims to give autonomy to citizens over their personal data. This would lead to various forms of discrimination suffered by people. Consequently, the disclosures made not only affects the right to privacy, but potentially infringe a plethora of other guarantees, including the fundamental human dignity of individuals.
Proportionate measures in such situations may have been a representation of people quarantined through putting stickers on their houses or through anonymized graphic representations not disclosing their names and other personal information. Thus, the actions of respective governments can be stated as unjustified and unconstitutional.
CONCLUSION
State has miserably failed to take recourse of the least restrictive measure in order to achieve its legitimate goal. It should strike balance between an individual’s privacy and public health and welfare. Allowing access to personal information freely can open door to exploitation and can overstep legal rights of an individual. In extraordinary situations like this, state must ensure privacy of a person is not quarantined in this process by keeping in mind proportionality aspect so as to ensure such measures are justified and practical. In light of the current scenario, comprehensive data protection laws are need of the hour.
References:
[i] 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 27, 2020); distwise-home-quarantive, Government of Karnataka, https://karunadu.karnataka.gov.in/hfw/kannada/Pages/distwise-home-quarantive.aspx (last visited Apr 28, 2020).
[ii]Pooja Biraia Jaiswal, Privacy of COVID-19 suspects violated; names, addresses made public https://www.theweek.in/news/india/2020/03/22/privacy-of-covid-19-suspects-violated-names-addresses-made-public.html ( last visited Apr 28,2020)
[iii] https://boi.gov.in/content/advisory-travel-and-visa-restrictions-related-covid-19
[iv]Natalie Alcoba, Argentina's coronavirus patients, medical workers harassed https://www.aljazeera.com/indepth/features/argentina-coronavirus-patients-medical-workers-harassed-200428122329108.html (last visited Apr 29,2020)
[v] Justice K. Puttaswamy v. Union of India, 2017 (10) SCALE 1, https://indiankanoon.org/doc/91938676/
[vi] 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 29, 2020).
[vii] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 17.
[viii] Madafferi v Australia Communication No 1011/2001 UN Doc CCPR/C/81/D/1011/2001 (UNHRC, 26 July 2004).
[ix] Oleksandr Volkov v Ukraine App no 21722/11 (ECtHR, 9 January 2013).
[x] National Disaster Management Act, 2005, Act No. 53 of 2005.
[xi] Epidemic Diseases Act, 1897, Act No. 3 of 1897.
[xii] “…the state may assert a legitimate interest in analysing data borne from hospital records to understand and deal with a public health epidemic such as malaria or dengue to obviate a serious impact on the population,” at para 180 of the judgement.
[xiii] Mr X v. Hospital Z, 1998 (6) SCALE 230.
[xiv] Smt. Lucy R. D’Souza And Etc. vs State of Goa and Others, AIR 1990 Bom 355.
[xv] At para 182 pg. 256 of the judgment
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