Coronavirus and the Constitution – VII: Balancing Privacy and Public Health in Karnataka [Guest Post]

[This is a guest post by Basawa Prasad.]

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As per a press release published on 30/03/2020, signed by the Karnataka Medical Education Minister, a direction has been made asking all those who are quarantined at home over the COVID-19 outbreak to send a “selfie image” of themselves every hour from their home, failing which they may be housed in government-created mass quarantine centers. The press release also mentions that the selfie image sent will include location coordinates (global positioning system (GPS)) which informs the government where the sender is; it further notes that every selfie sent by a home-quarantined person is verified for its legitimacy by the state government’s photo verification team. The state government has, further, released a mobile application which reveals the addresses of COVID-19 patients in the state under which such exercise will be carried on. This decision to the use the mobile app for tracking of quarantined patients has also been adopted by the Delhi, Gujarat, Tamil Nadu, and Maharashtra governments.

This step taken by the Karnataka Government is in addition to its decision on 25/03/2020, to publish personal details of almost 20,000 quarantined persons including their door numbers, PIN code, and which country they travelled from, on the website of the Ministry of Karnataka Health and Family Welfare Services. Such publication of names has also been carried out in other States including Delhi, Rajasthan, Maharashtra, and Punjab.

These actions of the State Government, especially by the Government of Karnataka in response to fighting COVID 19, raise an important question of the conflict between the two fundamental rights: right to health and right to privacy, enshrined in the Constitution under Article 21.

Right to Health

The publication of the names, and the decision to track personal details of the quarantined persons, has been justified under the objective of curbing the transmission of the virus. The right to health has been recognized by the Hon’ble Supreme Court time and again as an integral part of the right to life and personal liberty. In furtherance of this protected fundamental right, in the present situation, the State is bound to take measures for creating awareness of the spreading virus, provide medical facilities to the infected persons, and take measures for preventing its transmission.

The easy nature of the transmission of the virus requires that the individuals have the information of infected persons, as well as of the persons from whom there is a possibility of infection, in order to take sufficient precautionary measures to not be in contact with them. The action of the State to make available this information can be claimed as a part of the fundamental right to health, and the right to live in a healthy environment protected under Article 21, under the guise of “public interest”. However, the question of abrogation of the fundamental rights of the quarantined persons arises, with their privacy rights being breached, through the disclosure of their personal details including, as well as the continues surveillance of their movement.

In this context, in the year 1989 ( the Lucy R. D’Souze Case), a petition challenging Section 53(1) (vii) of the Goa, Daman and Diu Public Health Act, 1985, which empowered the Government to isolate persons found to be positive for AIDS, was argued before the Bombay High Court. It was contended by the Petitioner that the impugned provision violated fundamental rights protected under Article 19. However, the Court, rejecting the argument, held that

Isolation, undoubtedly, has several serious consequences. It is an invasion upon the liberty of a person. It can affect a person very adversely in many matters including economic. It can also lead to social ostracization. But in matters like this individual rights has to be balanced the public interest. In fact liberty of an individual and public health are not opposed to each other but are well in accord. Even if there is a conflict between the right of an individual and public interest, the former must yield to the latter.

 

Right to privacy and Doctrine of Proportionality

However, in recent times, the Supreme Court has clarified that a clash between rights must also be adjudicated within the framework of proportionality.

The doctrine of proportionality stipulates that the nature and extent to which a law interferes with fundamental rights must be proportionate to the goal it seeks to achieve. The Hon’ble Apex Court in a 9 bench decision in Puttaswamy I, while upholding the Right to Privacy as a Fundamental Right under Article 21, laid down the criteria for determining proportionality, emphasizing on the aspect that the State’s action, infringing the rights of an individual, has to be least restrictive alternative, with the sanction of a law and in consistence with achieving its goals. Further, the right to privacy ensures that every State intrusion into privacy interests, which deals with the dissemination of information personal to an individual or personal choices relating to the individual, has to be subjected to the balancing test prescribed under the fundamental right that it infringes. The reason for doing so is to assure dignity of an individual; dignity can be assured only when an individual has an autonomy over their personal choices and control over dissemination of information.

When tested against the above principle, the decision of Medical Education Minister to track quarantined individuals has no constitutional backing. The said decision has been made through a “press release”; it is, therefore, an executive action of the Ministry. There is no clarity with regard to which law it has been authorised under. Even presuming that the government has invoked the Epidemic Diseases Act, 1897 or the National Disaster Management Act, 2005, neither of these laws authorizes the State (as rightly pointed out by Suhrith here) to track individuals and collect their data, without any safeguard. Therefore, it can safely be said that the executive decision has no sanction of law.

Moving further, the practice of tracking quarantined individuals has been adopted by several countries including Israel, China, Tiwan, and Singapore. Both Singapore and Israel have been enforcing certain procedural safeguards. For example, Singapore has mandated the using of mobile applications like Trace Together for quarantined individuals, which embeds a number of privacy-preserving features, such as data anonymisation, explicit user content to data sharing and no use of geolocation. At the same time Israel, while authorizing its internal security agency to track the movements of persons who have contracted the coronavirus and identify others who should be quarantined because their paths crossed, sets a limitation of usage of such data for a period of 30 days, with the permission of the attorney general.

However, in India, the states which have adopted the use of mobile applications to track the quarantined individuals, in complete violation of the Doctrine of Proportionality, provide no procedural safeguards. Furthermore, it is doubtful whether these moves meet the other prongs of the proportionality standard: i.e., the least restrictive alternative and the balancing test. For example, publicly stigmatizing individuals runs the risk of people – in the future – hiding their symptoms to avoid discrimination – a move that will be barrier for individuals to seek healthcare immediately, and to adopt healthy behavior. Thus, even if the goal is to preserve and maintain public health, measures such as these – which cause public stigma – are unlikely even to serve that goal on its own terms.