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Government COVID-19 Responses in the Context of Privacy : Part II

Posted by Vipul Kharbanda at Dec 09, 2020 04:17 AM |
This is the second part in a two part series of posts analysing the privacy implications of the state’s responses to COVID-19.

BACKGROUND

This is the second part in a two part series of posts analysing the privacy implications of the state’s responses to COVID-19. In the previous post we discussed the privacy implications of releasing the names of COVID positive patients by the governments of certain states. In this piece we shall discuss the privacy implications of the following three government actions:

(i)     putting stamps on the hands of individuals who are required to quarantine themselves (Maharashtra, Delhi, Karnataka);

(ii)   putting up notices/posters outside the houses of individuals who were required to quarantine themselves (Delhi, Maharashtra); and

(iii) putting up barricades around the houses of COVID positive patients who prefer to not check themselves in to a hospital.

APPROACH OF THE PAPER

The principles regarding the scope and limitations of the right to privacy have been enunciated by various decisions of the Supreme Court after detailed discussions of previous case laws and esoteric discussions of jurisprudential principles. Therefore an analysis based on these discussions bears the risk of descending into complicated legalese. In order to avoid this problem and in the interest of making this article more accessible to those without a legal background, the author has tried to reduce these legal principles into a series of simple questions. This approach, while having the advantage of being more accessible carries the risk of losing some legal detail. The author has tried his best to ensure that this risk is reduced to a minimum and does not affect the accuracy of the analysis.

In the course of researching this paper, it came to light that a number of the above mentioned state actions were being taken pursuant to orders passed by State governments. However the orders issued by State governments are not readily available online due to various reasons, such as not being properly indexed, or being in vernacular languages or, in certain cases, not being uploaded at all. The author has  therefore been unable to analyse the specific orders and has limited his analysis to a statement of the relevant legal principles.

 

PRIVACY IMPLICATIONS

The right to privacy is not an absolute right and the state is allowed to restrict it under certain circumstances which have been established by judicial decisions. Therefore in order to analyse the privacy implications of these state actions we must try to answer two basic questions, viz.

(i)   do these actions violate the right to privacy of an individual, and

(ii)   in case they do violate the right to privacy, can the state justify these actions as falling within the legally accepted exceptions to the said right.

The right to be let alone

Do actions such as putting a poster or a barricade outside the house or stamping the hand of a person violate the individual’s right to privacy? In R. Rajagopal v. State of Tamil Nadu, [(1994) 6 SCC 632] after a discussion of various cases on the right to privacy, the Supreme Court summarised the broad principles relating to the said right, holding that “The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone"”. Later in the seminal case of K.S. Puttaswamy v. Union of India, [(2017) 10 SCC 1] (Puttaswamy I or Right to Privacy Judgment) it was held that:

“Privacy postulates the reservation of a private space for the individual, described as the right to be let alone. The concept is founded on the autonomy of the individual……….

The autonomy of the individual is associated over matters which can be kept private. These are concerns over which there is a legitimate expectation of privacy. The body and the mind are inseparable elements of the human personality. The integrity of the body and the sanctity of the mind can exist on the foundation that each individual possesses an inalienable ability and right to preserve a private space in which the human personality can develop……

Privacy at a subjective level is a reflection of those areas where an individual desires to be left alone. On an objective plane, privacy is defined by those constitutional values which shape the content of the protected zone where the individual ought to be left alone…….

Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.”

Thus the right to be let alone is an integral facet of the fundamental right to privacy. This right to be let alone has been further explained by Justice S.A. Bobde in his opinion in Puttaswamy I (quoting from Warren and Brandeis’ 1890 Article in the Harvard Law Review) as “the condition or state of being free from public attention to intrusion into or interference with one’s acts or decisions”. He further clarified that what appears to be essential for privacy is the power to seclude oneself from intrusions by others and these intrusions “may be physical or visual, and may take any of several forms including peeping over one’s shoulder…..”

Thus it can be said that any intrusions into the state of seclusion would violate the right to be let alone and therefore violate the fundamental right to privacy. Since these intrusions may be “physical or visual” it is clearly possible to hold that any poster being put outside the house of a person (without consent) would violate this right to be let alone. Similarly, putting up barricades outside the house of a person which marks out the house of the individual would also be considered as an intrusion into the right to be let alone and therefore the right to privacy. Further, since the integrity of the body has been held to be part of the right to privacy, therefore any visual intrusion such as a stamp put on the body of a person without his or her consent would violate the individual’s right to privacy.

Thus the first question has to be answered in the affirmative for all three state actions being analysed in this article. However as pointed out before, there are certain exceptions under which the state is allowed to restrict this right and we shall now try to determine if these actions can be justified as falling within those exceptions.

The Three Step Test

The brief outline of the right to privacy as well as its scope and limitations has already been discussed in Part I of this series. As mentioned above the right to privacy is not absolute and the Supreme Court in Puttaswamy I laid down a three step test that any state action that affects privacy, has to satisfy in order to be constitutionally valid. This three step test illustrated in the opinion of Justice Chandrachud, speaking for himself and three other Judges, emanates from the procedural and content based mandate of Article 21, viz.:

(i) legality, which postulates the existence of law

This is an express requirement of Article 21 which provides that no person can be deprived of his life or personal liberty except in accordance with the procedure established by law. Thus the existence of a law is an essential requirement to satisfy this part of the test.

(ii) need, defined in terms of a legitimate state aim

This ensures that the nature and content of the law imposing the restriction is within the zone of reasonableness mandated by Article 14, which is a guarantee against arbitrary state action. The pursuit of a legitimate state aim ensures that the law does not suffer from manifest arbitrariness. The Supreme Court in E.P. Royappa v. State of Tamil Nadu, [1974 AIR 555] has held that State action must be based on valid and relevant principles and must not be guided by any extraneous or irrelevant considerations. Where the operative reason for State action is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power. In Natural Resources Allocation, In re, [(2012) 10 SCC 1] the Supreme Court explained “manifest arbitrariness” in the following terms:

“when it is not fair, not reasonable, discriminatory, not transparent, capricious, biased, with favoritism or nepotism and not in pursuit of promotion of healthy competition and equitable treatment. Positively speaking, it should conform to norms which are rational, informed with reason and guided by public interest, etc.”

(iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them  

This ensures that the means which are adopted in the state action are proportional to the object and needs which are sought to be fulfilled by it. Proportionality ensures that the nature and quality of the encroachment on the right to privacy is not disproportionate to the purpose of the state action. This doctrine has primarily been used and applied under Article 19 of the Constitution. The first case in which the Supreme Court categorically acknowledged and applied the doctrine of proportionality was Om Kumar v. Union of India, [AIR 2000 SC 3689] where the Court found that administrative action in India affecting fundamental freedoms (Article 19 and Article 21) have always been tested on the anvil of proportionality, even though it has not been expressly stated that the principle that is applied is the proportionality principle. In Modern Dental College and Research Centre v. State of M.P., [(2016) 7 SCC 353] a Constitutional Bench of the Supreme Court laid down the four tests to determine proportionality, viz. “(i) that the measure is designated for a proper purpose (ii) that the measures are rationally connected to the fulfillment of the purpose, (iii) that there are no alternative less invasive measures, and (iv) that there is a proper relation between the importance of achieving the aim and the importance of limiting the right.”

In K.S. Puttaswamy v. Union of India, [(2019) 10 SCC 1] (Puttaswamy II or the Adhaar Judgment) , Justice Chandrachud, elaborated on this third step of the three step test formulated by him in Puttaswamy I, by saying that the essential role of the proportionality test is to enable the court to determine whether the act in question is disproportionate in its interference with the fundamental right. To determine this, the court will have regard to whether a less intrusive measure which was consistent with the objective of the law could have been adopted and whether the impact of the encroachment on a fundamental right is disproportionate to the benefit which is likely to ensue. More recently, the Supreme Court summarized the requirements of the doctrine of proportionality in Anuradha Bhasin v. Union of India, [(2020) 3 SCC 637] (decided on January 10, 2020) while discussing the suspension on internet services in the State of Jammu and Kashmir, in the following words:

“In the first stage itself, the possible goal of such a measure intended at imposing restrictions must be determined. It ought to be noted that such goal must be legitimate. However, before settling on the aforesaid measure, the authorities must assess the existence of any alternative mechanism in furtherance of the aforesaid goal. The appropriateness of such a measure depends on its implication upon the fundamental rights and the necessity of such measure. It is undeniable from the aforesaid holding that only the least restrictive measure can be resorted to by the State, taking into consideration the facts and circumstances. Lastly, since the order has serious implications on the fundamental rights of the affected parties, the same should be supported by sufficient material and should be amenable to judicial review.”

The last prong of the requirements quoted above, that the state action should be backed by sufficient material was also applied by the Supreme Court in State of Maharashtra v. Indian Hotel and Restaurants Association, [(2013) 8 SCC 519] when discussing the ban on dance bars in the state of Maharashtra. The same principle, viz. that there must have been at least some empirical data to back the state action encroaching upon fundamental rights was also applied when striking down the RBI’s ban on cryptocurrencies in the case of Internet and Mobile Association of India v. Union of India, [Writ Petition (Civil) No.528 of 2018, decided on March 4, 2020].

To summarize, the test to determine proportionality can be expressed in simple words in the following manner:

(i)    whether the measure has a legitimate goal,

(ii)   did the authorities assess alternative mechanisms,

(iii)   did the state choose the least intrusive measure under the circumstances, and

(iv)   is the action of the state backed by sufficient material or empirical data. 


Three Step Test in Three Questions

Apart from the opinion of four Judges which elucidated the three-fold test in Puttaswamy I, both Justice Bobde, [Para 46 of Justice Bobde’s Judgment in Puttaswamy I] as well as Justice Nariman, [Para 86 of Justice Bobde’s Judgment in Puttaswamy I] in their separate judgments, opined that since the right to privacy can be traced under various fundamental rights, the test to be satisfied would be the one under whichever fundamental right the privacy right being violated is traced to in that particular case. This view is similar to the classic test for Article 21 which incorporates within it the test for Article 14 i.e. the manifest arbitrariness test as well as Article 19 i.e. the proportionality test. The above situation is elucidated in very simple terms by Justice Sikri, in Puttaswamy II, Para 89, viz.

“Therefore, in the first instance, any intrusion into the privacy of a person has to be backed by a law. Further, such a law, to be valid, has to pass the test of legitimate aim which it should serve and also proportionality i.e. proportionate to the need for such interference. Not only this, the law in question must also provide procedural guarantees against abuse of such interference.” 

Reduced to its simplest terms, the test would require us to ask and answer three questions to determine whether each of the state actions being analyzed here is in fact violative of the right to privacy, or can it be said to fall within the exceptions to the said right. These questions are:

  1. Is the state action backed by a valid law?

  2. Does the law satisfy a legitimate state aim or is it arbitrary?

  3. Is the law proportionate to the object being sought to be achieved?


ANALYSIS

We shall now apply the principles discussed above to the state actions to determine whether each of these acts of the authorities satisfies the three step test. More specifically we shall try to answer the three questions that we have formulated from the three step test for each of the state actions.

Ques. 1. Is the State action backed by a valid law?

Ans. As mentioned in the research methodology, due to the lack of availability of official materials from different states, the author is not in any position to comment on the legal validity of the orders issued by each state regarding their decisions to either stamp individuals, or put up posters or barricades outside their houses. In absence of such material the only thing that can be said is that if the relevant orders have been issued without jurisdiction or by an authority which does not have the power to issue such directions then the orders would be considered invalid. In the absence of any material which is indicative of such impropriety, one has to assume that the orders have been validly issued, in which case the actions of the state in stamping individuals or putting up posters or barricades outside the houses of individuals would be considered valid.

Despite the limitations regarding analysis of each order as specified above, it may be useful to briefly discuss whether a broad legal framework exists for the kinds of steps that are being analysed here. The Disaster Management Act, 2005 provides for the establishment of the Disaster Management Authorities at the national, state as well as district levels. The powers of the National Disaster Management Authority are extremely wide and under section 6(1) as well as 6(2)(i) it has broad powers to “take such other measures for the prevention of disaster, or the mitigation, or preparedness and capacity building for dealing with the threatening disaster situation or disaster as it may consider necessary”. Section 20 obligates the State Government to constitute a State Executive Committee to assist the State Disaster Management Authority. Section 22(b) empowers the State Executive Committee to “examine the vulnerability of different parts of the State to different forms of disasters and specify measures to be taken for their prevention or mitigation”. Under section 22(h) it also has the power to give directions to any Department or other authority of the State regarding actions to be taken in response to any threatening disaster situation or disaster. Under section 24(b) the State Executive Committee also has the power to “control and restrict the entry of any person into, his movement within and departure from, a vulnerable or affected area”. Section 24(h) also gives the State Executive Committee the power to procure exclusive or preferential use of any amenities from any authority or person. Similar provisions giving wide powers to the State Government exist in section 2 of the Epidemic Diseases Act, 1897 which empowers the State Government to take such measures and prescribe such temporary regulations to be observed by the public as it may deem necessary.

A perusal of the above provisions would show that the State Executive Committee has the power to restrict a person’s movement and hence the barricading of a COVID positive patient’s home may be justified through the provisions of the Disaster Management Act, 2005. As far as pasting notices and posters on the gate or outer wall of the house of a citizen is concerned, this power could be read into either section 24(h) or the blanket provisions of section 22(b) of the Disaster Management Act. Although this issue has not been substantively decided as yet by any Courts of law, it appears that the Courts are taking a negative view of the practice of pasting notices and posters outside the homes of COVID positive patients, with the Delhi High Court as well as the Supreme Court deprecating this practice by the State authorities in ongoing proceedings. 

Regarding the stamping of incoming passengers, the State may try to justify these actions by relying on the blanket provisions contained in section 22(b) of the Disaster Management Act, 2005 or section 2 of the Epidemic Diseases Act, 1897, however it must be noted that these provisions do not specifically give the State government the power to violate the bodily privacy of an individual by forcibly stamping their hands. Therefore in the absence of any authoritative legal precedent, this question cannot be answered either way with any certainty.

Ques. 2. Does the law satisfy a legitimate State aim or is it arbitrary?

Ans. As with the first question, primary documents, which might contain the reasons behind the various state actions, are not freely available, therefore we have to rely upon statements in the media and news reports to determine the intention behind this move. From media reports (Maharashtra, Delhi, Karnataka), it appears that the reason for stamping individuals required to quarantine themselves was that some passengers were not following the instructions properly and therefore the governments in different states decided to follow the strategy to put a stamp (usually at the back of the palm) declaring that the person has been advised to be quarantined. It appears this has been done so that it would be easier for people to identify individuals who break quarantine, infact the Police Commissioner of Bengaluru even went on to state publicly that such individuals would be arrested and sent to government quarantine centers. Similarly in case of putting up posters outside the houses of people, the reason seems to be to ensure strict compliance with home quarantine requirements and ensuring easier monitoring at the village level. A petition was filed in the Delhi High Court challenging this action by the Delhi government, whereafter the Delhi Disaster Management Committee took a decision to stop putting up such posters as it was leading to hesitation amongst people to get themselves tested fearing stigmatization. Putting up barricades outside the homes of COVID positive patients was another method used by the authorities to ensure that the patients stay inside their houses and outsiders are unable to enter it, thereby stopping the spread of the disease by isolating the positive patients from healthy individuals.

The author is not aware of any other reasons due to which the States had undertaken actions such as stamping people’s hands or putting up posters or barricades outside their houses. We therefore will assume that the reason given in the media reports for these actions i.e. preventing the spread of COVID-19, is genuine. In that case, the objective behind this move, being a public health measure, would be a legitimate state aim. Since there is no information about any other extraneous, capricious or discriminatory reasons behind these actions, it can be said that the second prong of the three step test is satisfied.  

Ques. 3. Is the law proportionate to the object being sought to be achieved?

Ans. This prong of the test refers to the doctrine of proportionality, which can be simplified  into the following questions: (i) whether the measure has a legitimate goal, (ii) did the authorities assess alternative mechanisms, (iii) did the state choose the least intrusive measure under the circumstances, and (iv) is the action of the state backed by sufficient material or empirical data. We shall now try to answer these questions for each of the different types of state actions:

(i) Legitimate goal: The first question will have the same answer as for Ques. 2 above, i.e. the legitimate goal of each of these measures is to prevent the spread of COVID-19.

(ii) Assessment of alternative methods: Since information about the process adopted by the authorities before coming to the conclusion to implement each of these actions is not available, the second question cannot be answered with any authority. However, if challenged in Court the authorities will have to prove that in the process of deciding to implement any of these measures, the authorities did an assessment of all the possible alternative actions that they could have taken to achieve the objects being sought to be achieved. Thus they would have to show that they considered alternative methods to stop travelers from breaking the requirements of their quarantine other than stamping them, for eg. could the objective have been achieved through physical monitoring through surprise checks, etc. Similarly the state may have to show that they considered alternative methods to prevent the spread of the disease other than putting up posters or barricades outside the houses of COVID patients, for eg. physical monitoring through surprise checks, installation of cctv cameras, etc.

(iii) Least intrusive measure: It is not enough for the authorities to merely show that alternative methods were considered, but they would also have to prove that out of all the alternatives that they assessed, the one that they selected was the least intrusive method to achieve their objective. Thus the authorities would have to show that stamping travelers with indelible ink was the least invasive of all the other methods considered to ensure that they did not break the rules of their quarantine or that putting up posters outside the houses of people advised home quarantine was the least invasive measure to ensure strict compliance with their quarantine requirements under the circumstances. Similarly they would have to show that putting up barricades outside the houses of COVID - 19 positive patients was the least invasive method to ensure that patients do not interact with other individuals. An assessment of the negative impacts of such measures such as reduced testing due the fear of stigmatization would also be a consideration in the decision making process.

(iv) Based on sufficient material or empirical data: Since the COVID-19 situation is unprecedented, it is unlikely that the authorities would have any reliable empirical data indicating that the measures implemented by them would achieve their objectives. In such a situation one may have to turn to expert advice for guidance, which in this case would be advice from books on epidemiology and community health as well as academicians and experts in the field. In order to justify these actions the State will have to show that they relied upon sufficient material and applied their minds to come to the conclusion that out of all the methods available the methods adopted by them were the least invasive to achieve their goals based on expert advice and available data. The State would have to show that there was some valid material or data which indicated that stamping incoming travelers would be the best way to ensure that they did not violate their quarantine requirements, or that putting up posters and barricades were the best means to ensure that suspected or positive patients do not interact with other individuals.

 

CONCLUSION

The actions of the various state governments of stamping the hands of incoming travelers or putting up posters or barricades outside the houses of people would definitely be an interference with or restriction on their right to privacy, but whether it is a legal and valid restriction is very much a matter of debate. There exists a legal framework where such actions could possibly be considered as valid under specific circumstances upon satisfaction of certain conditions. However it is far from clear whether these conditions have been satisfied in case of every such state action. 

It is clear from the discussion above that it cannot be authoritatively said that the three step test laid down by the Supreme Court has been satisfied in case of every state action. We can say with some certainty that the second step of the three step test would be satisfied in most cases, however whether the first and third steps, relating to existence of a valid law as well as proportionality are satisfied or not is far from certain. If these conditions cannot be said to have been satisfied by the State then the actions discussed above would certainly be a violation of the fundamental right to privacy of the citizens. 

 

The post has been authored by Vipul Kharbanda and reviewed by Shweta Reddy.

 

 

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