FR v. FR — Part I: Privacy & Protests in times of COVID-19
By Ajay Sabharwal
This paper will analyze the conflict between fundamental rights enshrined in Part III of the Constitution of India. It will firstly, highlight the relevant case law and thereafter, shedding light upon recent factual developments, apply the relevant case laws, to resolve the conflict between fundamental rights. The paper will show that the Right to Life must prevail over other civil liberties guaranteed to Indian citizens under Article 19 and the Right to Privacy.
Article 21
The right to life and personal liberty, as a constitutional expression, can be traced back to the Magna Carta (though in separate clauses, namely clauses 36 & 52) signed by King John of England in June of 1215. Though the charter was annulled shortly thereafter by Pope Innocent III, the expression was utilized in and can be found in the American Declaration of Independence, which proclaims that all men are endowed with certain unalienable rights, including “Life, liberty and the pursuit of happiness”. This principle is further enshrined in the American Constitution through the Fifth Amendment passed in 1789, part of which reads as: “…nor be deprived of life, liberty, or property, without due process of law…” In the Indian Constitution, the right to life and liberty is guaranteed in Article 21 which reads as follows:
“21. Protection of life and personal liberty.-No person shall be deprived of his life or personal liberty except according to procedure established by law.”
The Honorable Supreme Court of India has on multiple occasions interpreted Article 21 to hold that the right to life does not mean mere animal existence but must include the right to live with dignity. In Francis Coralie Mullin v. Union Territory of Delhi,[1] the Supreme Court, speaking through Bhagwati J held as under:
“We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing one-self in diverse forms, freely moving about and mixing and commingling with fellow human beings.”
While, the question of moving from procedure established by law to due process of law, is not in contemplation in the present paper, and will be taken up another time, one must at least acknowledge masterly dissent of Justice Fazl Ali in AK Goapalan [2] and thereafter, the majority that upheld it in Maneka Gandhi[3] in expanding the scope of Article 21 to hold that the law cannot be a mere enacted piece that is fanciful, oppressive or arbitrary, but must be fair, just and reasonable.
Since, this paper deals with prevention of death and right to health of the public at large, it is pertinent to examine the law related to that.
Right to Health
The Supreme Court in State of Punjab v. Mohinder Singh Chawla[4] has held that the right to life includes the right to health. In Vincent v. Union of India[5] the Supreme Court has observed that “maintenance and improvement of public health have to rank high as these are indispensable to the very physical existence of the community and on the betterment of these depends the building of the society of which the constitution makers envisaged. Attending to public health, in our opinion, therefore is of high priority, perhaps the one at the top.”
In Pandit Parmanand Katara v. Union of India,[6] the Supreme Court deciding whether medical professionals had a legal obligation to provide medical aid to a person who was injured in an incident involving a criminal case, established the precedent that Article 21 could be enforced against private individuals and not merely the State. Ranganath Mishra, J held as under:
“7. There can be no second opinion that preservation of human life is of paramount importance. That is so on account of the fact that once life is lost, the status quo ante cannot be restored as resurrection is beyond the capacity of man. The patient whether he be an innocent person or be a criminal liable to punishment under the laws of the society, it is the obligation of those who are in charge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished. Social laws do not contemplate death by negligence to tantamount to legal punishment.
8. Article 21 of the Constitution casts the obligation on the State to preserve life. The provision as explained by this Court in scores of decisions has emphasised and reiterated with gradually increasing emphasis that position. A doctor at the Government hospital positioned to meet this State obligation is, therefore, duty-bound to extend medical assistance for preserving life. Every doctor whether at a Government hospital or otherwise, has the professional obligation to extend his services with due expertise for protecting life. No law or State action can intervene to avoid/delay the discharge of the paramount obligation cast upon members of the medical profession. The obligation being total, absolute and paramount, laws of procedure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained and must, therefore, give way. On this basis, we have not issued notices to the States and Union Territories for affording them an opportunity of being heard before we accepted the statement made in the affidavit of the Union of India that there is no impediment in the law. The matter is extremely urgent and in our view, brooks no delay to remind every doctor of his total obligation and assure him of the position that he does not contravene the law of the land by proceeding to treat the injured victim on his appearance before him either by himself or being carried by others. We must make it clear that zonal regulations and classifications cannot also operate as fetters in the process of discharge of the obligation and irrespective of the fact whether under instructions or rules, the victim has to be sent elsewhere or how the police shall be contacted, the guideline indicated in the 1985 decision of the Committee, as extracted above, is to become operative. We order accordingly.”
Similarly, judicial interpretations in environmental law precedents have extended the scope of Article 21 to hold that life and public health must take precedence and that a right to a clean, hygienic and safe environment flows from Article 21. In MC Mehta’s case[7] regarding the oleum gas leak, where the court had propounded the absolute liability doctrine, it also had held that measures must be taken to reduce hazardous risk and to maximize safety requirements. The ultimate goal of such an approach, wherein an individual is entitled to life in a safe and healthy environment is to preserve life. Thus, the principle to maximize safety and reduce risk has to extend beyond environmental degradation, directly to preserve the right to life as under Article 21, especially in instances of life threatening pandemics.
In the midst of the spread of the COVID-19 virus in 2020, there have been reports[8] of inbound travelers taking paracetamol to lower their temperature in order to game the screening system and avoid isolation.[9] There have also been instances of individuals hiding cases and/or preventing testing for the COVID-19/SARS-CoV-2 while being symptomatic. There have also been reports of large groups of individuals continuing to sit on protests despite calls for quarantine and social distancing. For the sake of argument both the right to privacy and the right to peaceably assemble and protest shall be examined below, although in brief.
Right to Privacy
India’s first ever eight-Judge Bench in MP Sharma v. Satish Chandra[10] held that the right to privacy was not a fundamental right under the Indian Constitution. In Kharak Singh v. State of Uttar Pradesh[11] a Six-Judge Bench dealt with the constitutionality of police regulations of the State of Uttar Pradesh and though Regulation 236 (b) was struck down as unconstitutional, but the majority did not guarantee the right to privacy. Ayyangar, J for the majority, concluded that “the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III.”
Subba Rao, J in his dissent (for himself and Shah, J) noted that “the right to personal liberty takes in not only a right to be free from restrictions placed on his movements but also free from encroachments on his private life. It is true our constitution does not expressly declare a right to privacy as a Fundamental Right, but the said right is an essential ingredient of personal liberty”. Justice Rao had opined that the entire Regulation was unconstitutional. on the ground that it infringed both Articles 19(1)(d) and 21.
In People’s Union for Civil Liberties v. Union of India[12] the Apex Court held that the right to privacy was implied in Article 21 by interpreting it in conformity with Article 17 of the ICCPR and Article 12 of the UDHR. The Apex Court, speaking through Kuldip Singh, J opined as under:
“We have, therefore, no hesitation in holding that right to privacy is a part of the right to “life” and “personal liberty” enshrined under Article 21 of the Constitution. Once the facts in a given case constitute a right to privacy, Article 21 is attracted. The said right cannot be curtailed ‘except according to procedure established by law’.”
Finally, on 24th August 2017, in Justice KS Puttaswamy v. Union of India[13] a 9-Judge Bench of the Supreme Court held that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21. Both Kharak Singh and MP Sharma[14] were overruled as specifically stated in paragraph 652. In paragraph 650 , the Apex Court observed as under:
“Let the right to privacy, an inherent right, be unequivocally a fundamental right embedded in Part III of the Constitution of India, but subject to the restrictions specified, relatable to that part. This is the call of today. The old order changeth yielding place to new.”
Article 19
Right to Protest
Unlike the Right to privacy, which has been read into Article 21 by the Supreme Court, the right to peaceably assemble and protest is explicitly provided in Article 19, which reads as under:
“19. Protection of certain rights regarding freedom of speech etc.
(1) All citizens shall have the right-
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
…”
There is a strong overlap between Articles 19(1)(a) and 19(1)(b) especially with reference to demonstrations. Though the rights enjoyed under Article 19(1) are fundamental, they are not absolute. Firstly, they are subject to the reasonable restrictions as mentioned in Article 19 itself, and as will be argued in this paper, that they will be subordinate to the right to life in Article 21.
In Annadurai’s case[15] it was held that placing restrictions or even prohibitions for the preservation of public safety was not violative of Article 19(1)(a) or (b). Similarly, in Railway Board v. Niranjan Singh[16] it was held that there was no right to hold meetings at other people’s property. The official spaces belonging to the Railways were treated as private property of a private entity.
In M Manjooran v. State,[17] a total prohibition was included to be a reasonable restriction to suit the exigencies of definite threats to public order. In paragraph 10 it was opined as under:
“We are not prepared to agree that “Reasonable restrictions” in a given case cannot amount to a total prohibition of the exercise of the right so long as the prohibition is strictly circumscribed in time and operative area to suit the exigencies of definite threats to public order. That is the type of prohibition contemplated by section 26 of the Travancore-Cochin Police Act, 1951, (Act 2 of 1952) and we hold that the section is ‘intra vires’ of the Constitution.”
On the question of access to roads, the Supreme Court in State of Himachal Pradesh v. Umed Ram Sharma,[18] held that the right to road access was within the ambit of Article 21. Reading Article 21 with Article 19(1)(d), the Supreme Court opined that each person has the right to move freely in India. The Court held that Article 21 embraces not merely the physical existence of life but the quality of life and thus, the access so provided is access to life itself. The Court held that:
“We accept the proposition that there should be a road for communication in reasonable conditions in view of our constitutional imperatives and denial of that right would be denial of the life as understood in its richness and fullness by the ambit of the constitution.”
While the aforementioned case was in the context of the hilly areas of Himachal Pradesh, the question of meetings and processions on highways, has been considered by a Five-Judge Bench of the Supreme Court in Himat Lal K. Shah v. Commissioner of Police, Ahmedabad & Anr. [19], Chief Justice SM Sikri held as under:
“31. It seems to us that it follows from the above discussion that in India a citizen had, before the Constitution, a right to hold meetings on public streets subject to the control of the appropriate authority regarding the time and place of the meeting and subject to considerations of public order. Therefore, we are unable to hold that the impugned rules are ultra vires Section 33(1) of the Bombay Police Act insofar as they require prior permission for holding meetings.
35. If the right to hold public meetings flows from Article 19(1)(b) and Article 19(1)(d) it is obvious that the State cannot impose unreasonable restrictions. It must be kept in mind that Article 19(1)(b), read with Article 13, protects citizens against State action. It has nothing to do with the right to assemble on private streets or property without the consent of the owners or occupiers of the private property.
36. This leads us to consider whether Section 33(1)(o) of the Act and the rules violate Article 19(1)(b). We do not think Article 19(1)(a) is attracted on the facts of the case.
37. We cannot appreciate how Section 33(1)(o) violates Article 19(1)(b). It enables the Commissioner to make rules to regulate the assemblies and processions. Without such rules, in crowded public streets it would be impossible for citizens to enjoy their various rights. Indeed Section 33(1)(o) may be said to have been enacted in aid of the rights under Article 19(1)(a) and 19(1)(d).”
In this case, though Rule 7 under the Bombay Police Act was held void as it infringed Article 19(1)(b) this was a marginal point, only on that the Supreme Court found that it did not give any guidance to the concerned officer and that it was too much to expect him to look at the scheme of the Act and decide that his discretion is limited. Learned author, HM Seervai in his masterpiece, Constitutional Law of India notes that “since a public meeting is a static assembly of people it is clear that members of a meeting are not exercising their right as individuals over the highway.” Furthermore, Seervai adds, that in Himat Lal’s case “the Court failed to consider the kinds of restrictions which could be imposed upon that right under Article 19(2).” The finding that Rule 7 is void, is itself disputed by Seervai. Without getting into the merits of a marginal issue, we shall move to the application of the facts in the present circumstances and the application of the law therein.
The Clash
At the outset, it must be made clear that this paper does not make any comment on the merits of the demands of those agitating against the Citizenship (Amendment) Act, 2019. Such a question is left open to be considered and addressed at another time.
The protesters at Shaheen Bagh have been removed on the morning of 24th March 2020.[20] While the right to expressions and to peaceably assemble is protected under Articles 19(1)(a) & 19(1)(b) of the Constitution of India, the same is subject to exceptions provided under Articles 19(2) and 19(3).
Even if one may not agree that before the onset of the COVID-19 virus , protesters at Shaheen Bagh were causing hindrance to rights of other citizens and the general public interest, it is evident that post the spread of the corona virus, the gathering was a threat to public health and safety and apart from Articles 19(2) and 19(3), the continuation of the protest among the prevalence of a highly contagious and potentially fatal virus, poses a genuine threat and risk to health and life and would thus be in contravention of Article 21. It could also be argued that non-removal of the protesters from the site, while imposition of s. 144 of the Code of Criminal Procedure would also be in contravention of Article 14.
In Communist Party of India Marxist v. Bharat Kumar,[21] the Supreme Court held that there cannot be any doubt that the fundamental rights of the people as a whole cannot be subservient to the claims of fundamental rights of an individual or only a section of the people.
In Bharat Kumar Palicha v. State of Kerala,[22] it was held that no person has, in the name of a protest or a strike, to cause inconvenience to any other person or to cause in any other manner a threat or apprehension of risk to life, liberty or property of any citizen or destruction of life and property and the least to any government or public property. In All India Anna Dravida Munnetra Kazhagam v. Government of Tamil Nadu,[23] the Supreme Court opined that “from a bare perusal of the aforesaid decision in Communist Party of India (M) (supra), it would be clear that neither can anybody give a call for bandh nor can the same be enforced. The High Court, in the present case, has recorded a prima facie finding that in the present case, the call was given for bandh and not strike/hartal.” Furthermore, in James Martin v. State of Kerala[24] where the Supreme Court had otherwise dealt with the right to private defense, also commented on the limits to the freedoms enjoyed in the name of a hartal or bandh or strike. The court opined in the concluding paragraph as under:
“24. Before we part with the case, it needs to be noted that in the name of hartal or bandh or strike no person has any right to cause inconvenience to any other person or to cause in any manner a threat or apprehension of risk to life, liberty and property of any citizen or destruction of life and property, and the least to any government or public property. It is high time that the authorities concerned take serious note of this requirement while dealing with those who destroy public property in the name of strike, hartal or bandh. Those who at times may have even genuine demands to make should not lose sight of the overall situation eluding control and reaching unmanageable bounds endangering life, liberty and property of citizens and public, enabling anti-social forces to gain control resulting in all-around destruction with counterproductive results at the expense of public order and public peace. No person has any right to destroy another’s property in the guise of bandh or hartal or strike, irrespective of the proclaimed reasonableness of the cause or the question whether there is or was any legal sanction for the same. The case at hand is one which led to the destruction of property and loss of lives, because of irresponsible and illegal acts of some in the name of bandh or hartal or strike. Unless those who organize can be confident of enforcing effective control over any possible turn of events, they should think twice to hazard themselves into such risk-prone ventures endangering public peace and public order. The question whether bandh or hartal or strike has any legal sanctity is of little consequence in such matters. All the more so when the days are such where even law-enforcing authorities/those in power also precipitate to gain political advantage at the risk and cost of their opponents. Unless such acts are controlled with an iron hand, innocent citizens are bound to suffer and they shall be the victims of the high-handed acts of some fanatics with queer notions of democracy and freedom of speech or association. That provides for no licence to take law into their own hands. Any soft or lenient approach for such offenders would be an affront to rule of law and challenge to public order and peace.”
Thus, no matter the reasonableness of the cause or legal sanction for protests, no person has a right to pose a threat to property and more importantly, to the safety and lives of fellow citizens.
In Tamil Nadu Centre for Public Interest Litigation v. State of Tamil Nadu & Anr.,[25] the Supreme Court has held that it is the responsibility of the state to protect the lives of and prevent the deaths of citizens. Though the facts in this case were relating to demands on behalf of farmers, the principle must be extended to both prevent the loss of lives in case of pandemics and in case of demonstrations that may be endangering public safety. Those individuals who are deliberately avoiding testing or isolation/quarantine despite having travelled abroad and/or being symptomatic or are negligent in this regard, pose a threat to the health, safety and life of others. Invoking Article 19 freedoms or even the right to privacy, implicit under Article 21 would not be justified. Such rights would be subservient to the right to life of other citizens.
The Supreme Court in Mr X v. Hospital Z,[26] dealt with the clash between the duty of the medical profession to maintain confidentiality, i.e. the right to privacy and the fact that the disclosure about the Appellant suffering from AIDS saved his to-be wife from contracting the disease, i.e the right to life. The relevant extracts from the judgement are as under:
“40. Sections 269 and 270 of the Penal Code, 1860 provide as under:
“269. Negligent act likely to spread infection of disease dangerous to life. — Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease, dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
270. Malignant act likely to spread infection of disease dangerous to life. — Whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
41. These two sections spell out two separate and distinct offences by providing that if a person, negligently or unlawfully, does an act which he knew was likely to spread the infection of a disease, dangerous to life, to another person, then, the former would be guilty of an offence, punishable with imprisonment for the term indicated therein. Therefore, if a person suffering from the dreadful disease “AIDS”, knowingly marries a woman and thereby transmits infection to that woman, he would be guilty of offences indicated in Sections 269 and 270 of the Penal Code, 1860.
42. The above statutory provisions thus impose a duty upon the appellant not to marry as the marriage would have the effect of spreading the infection of his own disease, which obviously is dangerous to life, to the woman whom he marries apart from being an offence.
43. Can the appellant, in the face of these statutory provisions, contend that the respondents, in this situation, should have maintained strict secrecy? We are afraid, the respondents’ silence would have made them particeps criminis.
44. Ms ‘Y’, with whom the marriage of the appellant was settled, was saved in time by the disclosure of the vital information that the appellant was HIV(+). The disease which is communicable would have been positively communicated to her immediately on the consummation of marriage. As a human being, Ms ‘Y’ must also enjoy, as she obviously is entitled to, all the Human Rights available to any other human being. This is apart from, and in addition to, the Fundamental Right available to her under Article 21, which, as we have seen, guarantees “right to life” to every citizen of this country. This right would positively include the right to be told that a person, with whom she was proposed to be married, was the victim of a deadly disease, which was sexually communicable. Since “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, the respondents, by their disclosure that the appellant was HIV(+), cannot be said to have, in any way, either violated the rule of confidentiality or the right of privacy. Moreover, where there is a clash of two Fundamental Rights, as in the instant case, namely, the appellant’s right to privacy as part of right to life and Ms ‘Y’s right to lead a healthy life which is her Fundamental Right under Article 21, the right which would advance the public morality or public interest, would alone be enforced through the process of court, for the reason that moral considerations cannot be kept at bay and the Judges are not expected to sit as mute structures of clay in the hall known as the courtroom, but have to be sensitive, “in the sense that they must keep their fingers firmly upon the pulse of the accepted morality of the day”. (See: Allen: Legal Duties)”
Thus, in Mr. X v. Hospital Z, it was held that where there is a clash of two fundamental rights, the right which would advance the public interest, would alone be enforced through the process of Court. Similar propositions have been upheld by the Apex Court on multiple occasions. Recently, in Arjun Gopal v. Union of India,[27] the Supreme Court has held again that in balancing the vital interests of the majority of the citizens against the interests of the few, the balance must always tilt in favour of the citizens in general.
While Sections 269 and 270 of the Indian Penal Code have been cited in X v. Z (supra), a reference to Section 271, produced below, would not be unwarranted amidst the spread of the pandemic:
“271. Disobedience to quarantine rule. — Whoever knowingly disobeys any rule made and promulgated by the Government for putting any vessel into a state of quarantine, or for regulating the intercourse of vessels in a state of quarantine with the shore or with other vessels, or for regulating the intercourse between places where an infectious disease prevails and other places, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
Whether potentially hazardous acts take place in the name of exercising fundamental rights under Article 19 or under Article 25, (which has its own limits based on public health) the individuals who put public health at risk, knowingly or due to gross negligence must be held liable. The freedoms enjoyed by the Indian citizen, though sacrosanct and advocated for by the author to the fullest extent (perhaps even beyond what the courts have interpreted them to be) must remain subservient to the right of life, which must be availed by the public at large. The end goal of freedoms is to lead to a better quality of life, not to no life at all.
In Confederation of Ex-Servicemen Associations v. Union of India,[28] a Five-Judge Bench of the Supreme Court, speaking in one voice, through CK Thakker, J opined as under:
“65. In State of Punjab v. Ram Lubhaya Bagga,[29] a three-Judge Bench of this Court had an occasion to consider the question of change of policy in regard to reimbursement of medical expenses to its employees. Referring to earlier decisions, the Bench took note of the ground reality that no State has unlimited resources to spend on any of its projects. Provisions relating to supply of medical facilities to its citizens is not an exception to the said rule. Therefore, such facilities must necessarily be made limited to the extent finances permit. No right can be absolute in a welfare State. An individual right has to be subservient to the right of public at large.”
Coda
The proposition that an individual right has to be subservient to the right of the public at large finds much in common with Edmund Burke’s philosophy as found in Reflections on the Revolution in France:
“Society requires not only that the passions of individuals should be subjected, but that even in the mass and body, as well as in the individuals, the inclinations of men should frequently be thwarted, their will controlled, and their passions brought into subjection. This can only be done by a power out of themselves; and not, in the exercise of its function, subject to that will and to those passions which it is its office to bridle and subdue. In this sense the restraints on men, as well as their liberties, are to be reckoned among their rights. But as the liberties and restrictions vary with times and circumstances, and admit of infinite modifications, they cannot be settled upon any abstract rule; and nothing is so foolish as to discuss them upon that principle.”
To balance out the father of classical conservatism, one must also hark back to Monsteque, the famed author of the Spirit of the Laws and the great classical liberal of the enlightenment era:
“Liberty is the right to do what the law permits.”
About the author
The author is a student at the Faculty of Law, Delhi University. He is also the President of the Indian Youth Economic Association.
References/Citations
[1] 1981 1 SCC 608
[2] AIR 1950 SC 27
[3] AIR 1978 SC 597
[4] 1997 2 SCC 83
[5] 1987 2 SCC 165
[6] 1989 AIR 2039
[7] AIR 1987 965
[8] https://timesofindia.indiatimes.com/india/covid-19-many-took-meds-to-dodge-isolation/articleshow/74740317.cms
[9] https://www.opindia.com/2020/03/inbound-traveller-paracetamol-evade-thermal-screening-isolation/
[10] AIR 1954 SC 300
[11] AIR 1963 SC 1295
[12] 1991 1 SCC 301
[13] 2017 10 SCC 1
[14] AIR 1954 SC 300
[15] AIR 1959 Mad 63
[16] 1969 1 SCC 602
[17] 1954 Cri LJ 110
[18] 1986 2 SCC 68
[19] 1973 1 SCC 227
[20] https://www.ndtv.com/india-news/delhis-shaheen-bagh-heart-of-anti-caa-protests-cleared-after-101-days-amid-lockdown-over-coronavirus-2199558
[21] 1998 1 SCC 201
[22] 1997 SCC OnLine Ker 134
[23] 2009 5 SCC 452
[24] 2004 2 SCC 203
[25] 2017 6 SCC 734
[26] 1998 8 SCC 296
[27] 2017 1 SCC 412
[28] 2006 8 SCC 399
[29] 1998 4 SCC 117
