The Constitutional Question of Privacy in the Pandemic

Anchal Bhateja 

Rights like the right to life under Article 21 are so cardinal that they cannot be subjected to derogations even during exigencies. The right to life has a wide amplitude and has been interpreted to include a plethora of rights within its ambit. The right to privacy which was read into Article 21 as a result of the judgement rendered in the case of K. S. Puttaswamy v. Union of India[I] was the recent addition to the body of law surrounding Article 21. The nine-judge bench, in this case, noted in the operative part of the judgement that every person had the right to be left alone.

Now, since this right stems out of the right to life, it has a scope and limitations akin to that of right to life under Article 21. Due to the 44th Constitutional Amendment Act 1978[ii], the right to life cannot be suspended even in the situation of a national emergency. Thus, the right to privacy also enjoys an identical immunity. However, in these troubled times, when there is no proclamation of national emergency under Article 352 or any emergency whatsoever and yet there is chaos, anxiety and a nationwide lockdown[iii] due to the outbreak of a severe pandemic, the inevitable question is whether the right to privacy can be absolutely disregarded and if not, can it still be partially restrained in the interest of public health? Moreover, to what extent can the state intrude into the private sphere of the individual when curfews have been imposed, markets are shut, and courts are hearing only ‘urgent matters’ and the executive has ample discretion to do whatever it deems fit?

Consider the recent action of the Karnataka Health and Family Welfare Department[iv] through which it had published the addresses including the house numbers, street numbers and localities of 14,910 people who had been quarantined because they had flown back to India from abroad, on the official website. Although the names and phone numbers of these people had not been released in these easily downloadable excel sheets, yet the information released is bound to have a pernicious impact on their privacy and in fact, safety.

Legally, the patients had a right to privacy with regard to their personal details even before the privacy judgement. It was recognised as early as in 1998, in the case of Mr. X v. Hospital Z[v]. The court opined that the patient had the right to confidentiality and privacy as regards their personal details; however, this right was not absolute and could be subjected to restrains when there was a risk to the public health. Further regulation 2.2 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002[vi], mentions that doctors can reveal the details of the patient when it is mandated by law or there is a larger public interest. The Ministry of Health had also released the Charter of Rights of Patients 2017[vii] which also recognize the public interest exception to the right to confidentiality and privacy.

On a probe into the actions of the Karnataka Government through a Constitutional Law lens, one is bound to ask a curious question as regards whether the Puttaswamy ruling, would have any bearing upon the interpretation or application of these laws concerning patient’s confidentiality or if the Puttaswamy precedent obligates the state to strike off a fine balance between the individual’s rights and the public interest?

The ratio of the Puttaswamy ruling firmly settled that the Right to Privacy was intrinsic to right to life. However, it was not absolute and was subject to reasonable restrictions. The Court in paragraph 168 of the judgment, further went on to lay down a 3-prong test to see if a restriction being imposed on someone’s right to privacy was reasonable or not. As per this test the restriction should be (i) legal, (ii) proportional to the object that is sought to be achieved by the law and (iii) it should have a legitimate aim.

The Karnataka Health Department’s action ought to be tested against the touchstones of the aforementioned test because the unwritten right to privacy and its limitations has been read into Article 21 and as per Article 13 (2)[viii], the State’s actions cannot be inconsistent with the same.

Concerning issue (i), the Code of Ethics regulations provide for the revelation of the personal details of the patient by the doctors when there is a threat to the public health, which was also the case here.  However, no law including the Epidemic Diseases Act 1897[ix], empowers the Government to reveal such information on its official website. Therefore, the action of the Karnataka health department has no backing of any law.

Concerning issue (ii), J. Kaul observed in his opinion, that the extent of restriction was supposed to be proportional to the need for such restriction. In the given case, the revelation of personal information of these people on the basis of the far-fetched assumption that some of these people might be infected and out of those infected people, some might break the quarantine restrictions and out of those people who break these restrictions, some might infect others is to be juxtaposed with their right to privacy which is unquestionably being infringed. If both the countervailing interests are weighed against each other as per principles of proportionality, it seems very unfair to put the privacy, life and liberty of these quarantined people at peril. This becomes more worrisome as many of these people have written to the Karnataka Government saying that they have been facing ostracization and they fear eviction, due to the circulation of their details.

If the object of the Government was to enforce the quarantine restrictions effectively, it could have counselled them to stay indoors and could have taken a strict action against them even up to the extent of booking them for spreading deadly diseases under Section 269 and 270 of the Indian Penal Code[x], if they refuse to obey the Government orders. But, on the contrary, putting their privacy, life and dignity in jeopardy, just fearing that they might violate the quarantine restrictions and might infect others, was grossly in proportionate.

Concerning the third issue, J. Chandrachud in his opinion, noted that the restriction so placed was to be reasonable and non-arbitrary and it was maintainable only if it was directed towards some legitimate state aim. If we ignore the first two parts of the test, it can be argued that the names were published in public interest to contain the spread of Coronavirus and thus, there was a legitimate aim to protect the public health.  However, given the means employed by the Government were not legal or proportionate, they amount to a breach of privacy even if they were directed towards a legitimate aim. Lastly, it is to be noted, that these people had just been quarantined and had not been tested positive. Thus, this unwarranted surveillance by the state, when it had other lesser intrusive means to find the location of the people, who break the quarantine, unnecessarily stigmatised them and was constitutionally impermissible.

The State should strive to uphold the piousness and paramountcy of fundamental rights and the Constitution even in these troubled times, for that will be the hallmark of a successful Democracy that can stand straight, even in the face-off with the greatest challenges to humanity.

[i] Justice K.S. Puttaswamy v. Union of India AIR 2017 10 SCC




[v] Mr. X v. Hospital Z. AIR 1999 SC 495



[viii] Article 13, The Constitution of India, 1949


[x] Section 269 and Section 270 of the Indian Penal Code, 1860

The author is a student at NLSIU, Bangalore