In times of coronavirus, right to life versus right to privacy
In response to an alarming surge in Covid-19 patients, the Odisha government imposed a complete lockdown of 48 hours in three districts on April 3. The government took the decision to prevent the spectre of a community transmission of the disease.
The state government also disclosed the name and addresses of one out of about 40 positive patients (then) in Bhubaneswar who tested positive. The person’s name was declared as he did not have a travel history, not even within India, and all attempts to trace his contacts proved unsuccessful.
The disclosure was aimed at calling upon all people who came in contact with this infected person, to self-identify themselves to enable contact tracing and restrict the spread of the virus.
The disclosure of the patient’s identity, however, has drawn some criticism on the ground of breach of an individual’s right to privacy. The criticism is particularly relevant now, when the country is discussing a new Personal Data Protection law and the government is asking people to download the Aarogya Setu application.
The Supreme Court in the Justice KS Puttaswamy versus Union of India case held that the right to privacy of an individual can only be subject to reasonable restrictions, when the restrictions are enforced through a law which pursues a legitimate state aim and are proportionate.
The disclosure of names of patients with the aim to trace contacts and stop the spread in such exceptional circumstances is a proportionate and necessary limitation to the person’s right to privacy.
Constitutional scrutiny of any government action related to Covid-19 must be contextualised within the extraordinary circumstances which inform such action. Given the existential threat to the entire human race, it is imperative that the Union and state governments take all possible measures to map the transmission, identify potential carriers and prevent community transmission. We have seen the result of uncontrolled community transmission in countries such as Italy, Spain and the United States despite their admitted advanced healthcare systems.
Disclosure of the name of the patient was enforced by the state government through a law pursuing a legitimate state aim. On April 3, the government of Odisha had promulgated the Odisha Covid-19 Regulations, 2020, in exercise of powers conferred on it under the Epidemic Diseases Act, 1897.
The regulations strictly prohibit the disclosure of the name, address or telephone number of any person, except under ‘exceptional circumstances affecting public health and safety’. The state government, in the instant case, disclosed the name of the patient under the above mentioned exception.
The restraint on the right to privacy of the concerned individual was proportionate as it was the least restrictive method available to the government to protect the public from the pandemic. The government had already failed in all its attempts to trace the infected person’s contacts.
Reasonable restraint of the right to privacy of one person must be balanced against the right to life of an entire population under the well-settled doctrine of ‘reasonable restriction’ enshrined in Article 21 of the Constitution. The protection of the right to life and livelihoods of millions required that the right to privacy of some individuals is subject to reasonable restrictions as was resorted to in this case by the state government.
The disclosure of the details of only one person from among 40-odd positive cases then was not discriminatory as it was carried out under an exception well within the framework of law. The said exception satisfies the test of ‘reasonable classification’ and has a rational connect with the objective of protecting public health and safety.
Above all, let us not forget that law is ‘for many, not the few’. A just society is one where the right of the individual is an instrument for the greater collective good, and not antithetical to it.