The outbreak of the COVID-19 (pandemic) has created a public health emergency and has created a sense of fear in the masses. It has led to prejudices against people and communities resulting in stigmatisation. The people are resistant to disclose the right information about their health conditions, and the labourers are under constant fear of cut-off and isolation. Thus, it has become imperative that once such information is shared with the state adequate steps are taken to safeguard the confidentiality of such information.
The fundamentals of the fundamental right to life envisaged by Article 21 of the Constitution of India have been time and again given newer and wider dimensions. Article 21 confers upon the people of India right to life with all its elements and is not a toothless right. Right to privacy and the right to health are two of the most essential extensions of the said right. However, the question is what happens when the two most indispensable rights are loggerheads. How is the Court supposed to decide whether to uphold the right of an individual to protect its sensitive and personal information or right of society at large to health and safety? The Courts in India have time and again been posed with the said question and while dealing with different circumstances has been able to set out a system of checks and balances to create equilibrium between right to privacy and right to health, and right of an individual and right of society at large.
As per the guidelines issued by United Nations Medical Directors as described in the document on Instructions for reporting COVID-19 cases, “personal details on COVID-19 infected individuals and their dependents must remain strictly confidential…”. “Care must be taken to not release any personal details that would allow these individuals and their dependents to be identified.”
The question that has become relevant in the recent times of the COVID-19 pandemic is, whether the state can disclose information which is private and confidential for greater welfare, health and safety of the public. The term “sensitive personal data or information” has been defined under the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 to include physical, physiological and mental health condition. A new concept that is gaining importance is “Anonymisation of data” i.e. hiding not the data but such information which makes it sensitive and personal. The relevant law that exists concerning the public welfare, health and safety vis-à-vis the right to privacy can be understood upon the analysis of the judgments below.
Right to Privacy v. Right to Health
In this case of Mr. X v. Hospital Z, the court observed that the right to privacy is a vital component of the right to life conferred by Article 21 of the Constitution of India. However, the right to privacy is not an absolute right and can be subjected to reasonable restrictions to maintain law and order situation, to prevent crime or disorder and for protecting health, morals, rights & freedom of other individuals.
The court observed that:
“44. …right to life includes right to lead a healthy life so as to enjoy all the faculties of the human body in their prime condition”
Thus, in case there is a conflict between the right to privacy and right to a healthy life as a part of life under Article 21 of the Constitution the right which would advance public morality and interest can alone be enforced through the process of the court.
In Smt. M. Vijaya v. The Chairman and M.D. Singareni Collieries Company Ltd and ors the court observed that:
“52. There is an apparent conflict between the right to privacy of a person … not to submit himself forcibly for medical examination and the power and duty of the State to identify … infected persons for the purpose of stopping further transmission of the virus. In the interests of the general public, it is necessary for the State to identify … positive cases and any action taken in that regard cannot be termed as unconstitutional as under Article 47 of the Constitution, the State was under an obligation to take all steps for the improvement of the public health. A law designed to achieve this object, if fair and reasonable, in our opinion, will not be in breach of Article 21 of the Constitution of India.
- It is well settled that the right to life guaranteed under Article 21 is not mere animal existence. It is a right to enjoy all faculties of life. As a necessary corollary, the right to life includes right to healthy life.”
The Court in the said case relied upon several judgments. Some of the views on which the court placed reliance upon are as follows:
- In a welfare state, it is the duty of the State to ensure good health as a healthy body is the very foundation for all human activities.
- Under Article 21 of the Constitution, the State is under an obligation to preserve and protect life.
- Right to a healthy life is a fundamental right.
- Isolation has serious consequences and is an invasion upon the liberty of a person. It has adverse effects on a person and can also result in social ostracization. However individual right has to be balanced with the public interest. In case there is a conflict between the right of an individual and public interest, the former must yield to the latter.
- In case there is a conflict between the larger interest of the society and the fundamental rights of an individual then the former shall prevail.
- When a person is infected with a contagious disease, which is transmissible through normal activities poses a risk to the health of other persons at the workplace then such person can be reasonably and justifiably denied or discontinued from the employment.
In K. Narayanan v. Chief Secretary the petitioner, before the Madras High Court, prayed that an appropriate direction, be issued to the Government to publish names of the persons, who are infected with COVID-19 on a website. The prayer was made to safeguard the unaffected citizens and curb the spread of the COVID-19 virus. The Court refused to grant the prayer on the ground that it would result in public law and order situation, social stigma, aspersions and ex-communications.
Thus, any reasonable restriction can be imposed on the fundamental rights of a person be it restricting the movement, discontinuing employment, forcibly subjecting the person to medical examination etc. provided the same is done in the larger interest of the public welfare, health and safety. Any individual right is subservient to the interest of the society at large. However, in the advent of protecting the public interest, the State cannot override its duty to protect personal, sensitive data and information of an individual.
Anonymity v. Privacy
In K.S. Puttuswamy and anr v. Union of India and ors the court held that;
The primary objective of anonymity and privacy is to prevent access to any sensitive and personal information or data. However, “privacy” seeks to attain the objective by hiding the data itself whereas “anonymity” does so by only hiding as much as what makes the data personal and sensitive. Any medical records reflecting physical, physiological or mental health are to be treated with strict confidentiality. Hospitals and doctors stand in a fiduciary relationship with the patients. Therefore, if any records furnished to them are distributed without knowledge and consent of the patient it amounts to an invasion of privacy. However, in case of an epidemic or a pandemic, the State may legitimately require access to the data and hospital records. The underlying intention is to understand the gravity of the disease and to curb its serious impact on the larger population. In such cases, the State may access and use the data of COVID-19 patients for designing appropriate policies. However, they are required to ensure the anonymity of the individuals.
In the High Court of Kerala, several writ petitions were filed challenging the contract entered into by the Government of Kerala with a Company named Sprinklr Inc. To make available an online digital software/platform to process, analyse data concerning patients and those vulnerable and susceptible to the Corona Virus Disease – 2019 (COVID-19 hereinafter) in the State of Kerala.
The Court in order to not jeopardise the actions of the State to control the epidemic and to balance the interests involved has directed the Government to anonymise all the data that has been collected and that will be collected from citizens with regard to COVID 19 epidemic, allow Sprinklr to access such data only after anonymisation, inform the citizens that such data will be accessed by Sprinklr or such other third party, obtain their consent to such effect, injunct Sprinklr from any act in breach of confidentiality of data, order it to not deal with any part of the data otherwise than permitted and entrust back all such data when the contractual obligation is completed, and injunct Sprinklr from advertising or representing or holding over to any third party that they have access or are in possession of data regarding COVID-19 patients.
In India, courts have been making efforts to balance the right to privacy and public welfare. The information which is to be disclosed and the extent to which it is to be disclosed must be determined by the state by keeping in mind that it is the individuals who ultimately constitute of “public”. Personal and public rights are intermingled and cannot be separated from each other. It is important in the given scenario that public welfare and health is taken care of without compromising on the need to protect personal and confidential data of a person.
REFERENCES- United Nations Medical Directors; ‘Preserving the privacy and confidentiality of COVID- 19 infected UN personnel and dependents’ (2 April 2020) <https://www.un.org/sites/un2.un.org/files/preserving_the_confidentiality_of_covid_19_infected_un_personnel_2_april_2020.pdf>; accessed on 10.07.2020  (1998) 8 SCC 296  AIR 2001 AP 502  Vincent Parikurlangara v. Union of India;1987 (2) SCC 165  Pt. Paramananda Kataria v. Union of India; 1989 (4) SCC 286  State of Punjab v. MS Chawla; AIR 1997 SC 1225  Lucy S.D souza v. State of Goa; AIR 1990 Bom. 355  Mohan Patnaik v. Government of AP; 1997 (1) ALT 504 (FB)  MX of Bombay Indian Inhabitant v. Z.Y. (9) AIR 1997 Bom. 406  2020 SCC OnLine Mad 974  (2017) 10 SCC 1  WP (C).TMP.Nos.84, 129, 132, 148 & 163 of 2020
United Nations Medical Directors; ‘Preserving the privacy and confidentiality of COVID- 19 infected UN personnel and dependents’ (2 April 2020) <https://www.un.org/sites/un2.un.org/files/preserving_the_confidentiality_of_covid_19_infected_un_personnel_2_april_2020.pdf>; accessed on 10.07.2020
 (1998) 8 SCC 296
 AIR 2001 AP 502
 Vincent Parikurlangara v. Union of India;1987 (2) SCC 165
 Pt. Paramananda Kataria v. Union of India; 1989 (4) SCC 286
 State of Punjab v. MS Chawla; AIR 1997 SC 1225
 Lucy S.D souza v. State of Goa; AIR 1990 Bom. 355
 Mohan Patnaik v. Government of AP; 1997 (1) ALT 504 (FB)
 MX of Bombay Indian Inhabitant v. Z.Y. (9) AIR 1997 Bom. 406
 2020 SCC OnLine Mad 974
 (2017) 10 SCC 1
 WP (C).TMP.Nos.84, 129, 132, 148 & 163 of 2020