DISCLOSURE OF COVID -19 PATIENTS’ IDENTITIES MUST PASS THE TRIPLE TEST OF THE PRIVACY JUDGEMENT
This Research Paper is written by Surabhi Rana, a Fifth Year B.A LL.B (Hons.) Student at Amity Law School, Delhi.
This article seeks to establish how disclosure of Covid’s patients’ identities must pass the triple test of privacy. The article will explore the KS Puttaswamy judgment, which laid down the triple test and will also seek to discover how it is imperative to protect their identities, living in a world of stigma, and also go into whether a patient’s privacy can be compromised for public health or not. The article will discuss various Indian Council for Medical Research and United Nations guidelines related to a COVID patient’s privacy and will also in brief, discuss the PIL file in the Bombay HC seeking a proper mechanism to disclose the identities of COVID patients.
A BRIEF ANALYSIS OF KS PUTTASWAMY JUDGMENT
The Supreme Court in KS Puttaswamy and Anr. v. Union of India and Ors held that the Right to Privacy is a fundamental right under Article 21 of the constitution and it was protected by the constitution. However, the court also reiterated that like any other fundamental right, the right to privacy is also not an absolute one and then further went on to lay down the triple test.. If any law seeked to encroach upon the fundamental right of privacy of an individual, it would have to pass the three conditions of triple test and could then only successfully intervene in the right of privacy, on a case to case basis. These three conditions include:
- Legality, which postulates the existence of law;
- Need, defined in terms of legitimate state claim;
- Proportionality which reflects the rational nexus between objects and means adopted to achieve them
The court also mentioned how the ‘legitimate state claims’ should include matters of national security, prevention of dissipation of welfare benefits, preventing and investigating a crime etc.
The court also held the MP Sharma and Kharak Singh judgments to be overruled as far as they were concerned with the right of privacy not being a part of the constitution.
Any law encroaching upon the Right of privacy will have to be just, fair and reasonable. No person can be subjected to arbitrary interference with his family, home, person nor attacks upon his honour and reputation.
PATIENT’S PRIVACY OR PUBLIC HEALTH?
While the world is still finding its feet amidst the pandemic, the nature of COVID-19 is such that its communicability rate is high, hence making it extremely difficult to go out in public places or even interact with someone without any safety measures or keeping distance. In such a horrendous circumstance, it becomes important that an individual prioritizes his health and the government and society work together, under cooperation to fight this pandemic. And for fighting the disease, it might become necessary in many circumstances to reveal the identities of patients, in order to make sure that they do not pose a threat to others and others also keep a safe distance from a COVID infected patient. The pandemic in the nation saw pamphlets and quarantine posters being stuck on the outside walls of the house of an infected patient, to make people aware about the ensuing condition and to warn them to keep their distance. However, this revelation of patient’s identities saw hundreds of patients being stigmatized and being called ‘super spreaders’ in certain media outlets as well. This calls for a major intervention by the government in formulating a mechanism of revealing the patient’s identity in a way that protects the health of others but also passes the triple test laid down by the apex court in the privacy judgment. It is ill advised to completely hide a patient’s identity in certain cases, such as that of an HIV patient as also held by the Supreme Court in Mr. X v. Hospital Z  . The court in this case held that although the right of privacy is a fundamental right, it is not an absolute one and the disclosure of the petitioner’s HIV status was not violative of his Right of privacy since the right can be taken away for the protection of health and rights of others, prevention of commission of crimes etc. . . .
In the Hon’ble Bombay High Court, a Public Interest Litigation (PIL) was filed, seeking a mechanism disclosing the identities of patients both infected and suspected. The PIL filed by a law student and an agriculturist mentioned in their submissions that disclosure of the identities was important since the patient alone might not be able to completely disclose who all they were in contact with and this put the health of others in danger and deprived them of their right of health under Article 21, Right to Life. The court raised the privacy concern and has sought replies from both State and Central Governments and the matter is still sub judice .
UN AND ICMR GUIDELINES FOR PROTECTION OF PRIVACY
UN Guidelines for Protection of Privacy
The UN in its guidelines has laid down that any intimate details of COVID-19 infected individuals and their dependants has to remain strictly confidential .The information during contact tracing also has to remain private and only the minimum required information must be shared .
ICMR Guidelines for Protection of Privacy
Under the National guidelines for ethics committee reviewing biomedical and health research during COVID – 19, ICMR has mentioned how privacy confidentiality is of the utmost importance. They emphasise that any information related to the infection of COVID-19 or a positive patient is of a highly sensitive nature and hence the privacy and confidentiality must be maintained at all costs.
In an interview, Dr. Rajni Kant, Head of Research, Management, Policy, Planning and Coordination at ICMR, spoke to The Quint, in an interview and mentioned “how India’s policy is not to reveal any information regarding the patient”. He reiterated that they do not disclose the name, age or anything about the patient. However, different states disclosing the names of patients has come as an immediate concern and also does not align with the guidelines issued by ICMR. Responding to this, Dr. Kant mentioned how since health was a state subject, some states were acting of their own accord.
STIGMATISATION OF COVID-19 PATIENTS
Lack of proper awareness often leads to unnecessary fear and paranoia among people. It leads to fear and hence making the people take certain actions that are uncalled for. This pandemic saw eviction of doctors, nurses and medical professionals from their rented homes due to the fear of spread of infection. With quarantine posters being stuck outside the walls of a patient’s house , it led to more social isolation and discrimination .In many a cases , it was observed that the COVID -19 patient’s family was being called and harassed for bringing the virus to the city . In an outrageous incident, the migrant workers were sprayed on by disinfectants, which is extremely detrimental to the health of people. Such practices should be met with the strictest of sanctions and consequently the public has to be educated. This lack of information and awareness around the disease is turning out to be extremely detrimental to many individuals and it should be the top priority of the state to educate the public regarding the disease and ask them to cooperate and refrain from indulging in discriminatory practices. The state should campaign and make sure the relevant information reaches every household and make sure to also stop the spread of fake news regarding the virus.
The pandemic rises with each day and more and more people are falling victims to it. What needs to be done on an urgent basis is the making a law, ensuring that the privacy of infected individuals is protected and not taken away except for the procedure established by law. And even for taking away the right of privacy, the law must pass the triple test as explained above, in the KS Puttaswamy (privacy judgment) case.
While some states have been revealing the patient’s identities (Orissa, UP etc.) Other states have acted on ICMR’s advisory and announced punitive actions against those who disseminate private information of the infected individuals.
Even if the individual’s identity has to be revealed, it should be done at the last resort, with the person’s consent and it should be for a particular and specific purpose.If something can be done, including contact tracing, using de-identified details, that approach should be taken.
Minimum collection of personal information and purpose limitation should be the two main objectives to work on.
Right of Privacy is our fundamental right, protected by the Constitution. It should not be too easy to take away that right and for this very reason the Triple Test has been laid down. Sharing the information of the infected individual might be absolutely necessary in certain conditions to stop the spread of the virus further and in such cases public health does take precedence. The State should come up with a mechanism to protect as well as reveal in absolutely essential cases, and make sure that the mechanism is in lines with the Triple Test laid down in the KS Puttaswamy case by the 9-Judge Supreme Court bench.
 KS Puttaswamy and Anr v. UOI and Ors, A.I.R 2017.S.C 4161(India).
 Mr. X v. Hospital Z , (1998) 8 S.C.C 296 (India).
 United Nations Medical Domain, ‘Preserving the privacy and confidentiality of COVID infected personnel and their dependants’ , April 20, 2020.
 ICMR, ‘National Guidelines for Ethics committee for reviewing Biomedical and health research during COVID 19 Pandemic’, April , 2020.
 Maanvi, ‘Reveal COVID-19 patient’s identity or not ? What’s India’s Policy ?’ , The Quint , * April 2020 , 08:21 pm , https://www.thequint.com/coronavirus/stigma-or-policy-indias-dilemma-on-covid-19-patients-identity