Disclosure Of COVID Patients' Identities Must Pass 'Triple Test' Of Privacy Judgment; Identity Of Deceased COVID Warriors May Be Disclosed To Honor Them: Orissa HC [Read Judgment]

The bench of Chief Justice Mohammad Rafiq and Justice S. Pujahari has held that the State has to uphold the right to privacy of the patients by preserving their identities. However, it has also stressed that right to privacy, like any other fundamental right, is not absolute and it may be diluted in exceptional circumstances.

On this note, the High Court has cautioned the authorities to ensure that in case they reveal the identity of a Covid patient/ suspect, the same is done in accordance with the law, i.e., it satisfies the 'Triple test' as laid down by the Supreme Court in the right to privacy judgment (KS Puttaswamy & Anr. v. Union of India & Ors.)

Orissa HC Passes Interim Order Against Disclosure Of Identities Of Covid Patients

The Petitioner had approached the High Court highlighting the "devastating consequences" attached to disclosure of identity of Covid patients, including stigmatization and threat to life.

While concurring with this submission, the bench took note of the State Government's submission that it has already formulated necessary regulations under the Epidemic Disease Act, 1897 to prevent unauthorized disclosure of the identity of the Covid-19 infected persons as well as persons in Quarantine, and also made the same to be punishable in the manner prescribed.

Therefore, the High Court decided to close the PIL with "hope and trust" that the State will take all necessary steps to mask the patients' identities.

"We hope and trust that the State shall take further steps if not already taken to keep the personal information masked by applying appropriate method if not there, such as, providing code number for keeping the details in anonymity and keep utmost confidentiality of such information in different intradepartmental communication…," the bench suggested.

The provisions may also be used to prevent the menace of disclosing identities by unauthorized persons on social media.

"For more effective implementation of the Regulation, the State must have vigil over spreading of such rumour and unauthorized information in the social media platforms and whenever it comes to their knowledge regarding such disclosure of names unauthorisedly and any rumour in the social platform, to proceed against such persons in the manner known to law," the Court added.

Disclosure of identities in public interest

The Court was also informed that the State regulations confer discretion on the authorities to disclose the identity of such persons in the interest of public health and safety, with the approval of the State Government.

Recognizing the importance of such an exception to "prevent the arrest of the spread of Covid-19 Pandemic", the Court allowed the State Government to disclose the identities of the patients/ suspects only in "exceptional circumstances" with the consent of the State Government.

The Court further proceeded to caution the authorities that any disclosures so made, shall be subject to scrutiny of 'Triple Test' prescribed in the privacy judgment.

"We hope and trust that before disclosing the identity of Covid-19 infected persons or persons in quarantine in exceptional circumstances, as stated in the Regulation, to achieve the goal, the State shall also must take note the fact that the same is subject to scrutiny of triple test prescribed in the case of Puttaswamy (supra) before invasion of such right to privacy of the persons in quarantine / Covid-19 infected persons alive or dead," the order states.

Unauthorized disclosures by Media

So far as the unauthorized disclosure of the identity of Covid-19 patients in print and Electronic media is concerned, the Court highlighted that it was causing more harm to public healt,

"Disclosure of such identity in Print and Electronic media, visits the persons infected alive or dead as well as the persons in quarantine and their family members with trauma and tribulations and at a times leading to ostracization, so also endanger their lives and limbs in view of the stigma attached to the disease in this Country. The same also does more harm to the health of the public in general as for the opprobrium as aforesaid, Covid-19 virus infected and persons who having come in contact with such persons, as such, required to be kept in quarantine, are not likely to come forward to disclose the same which shall contribute enormously in spread of the Pandemic Covid-19 virus, a great threat to the mankind."

The Court added that the aforesaid cannot be a ground to gag the freedom of the Press. However, it expressed hope that the Press shall behave in a "more responsible manner" with regard to disclosure of identity and it shall not disclose the identity of such persons unauthorizedly.

It then reminded the concerned media institutions/ persons of the Supreme Court's observations in Rajagopal v. State of Tamil Nadu, reported in (1994) 6 SCC 632.

"A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent – whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages," the Top Court had held therein.

Disclosure of identities of deceased Covid Warriors

Lastly, the Court addressed the issue of disclosure of identity of Covid Warriors, who succumb to the infection on line of duty.

"There is no impediment on the part of the State Government to disclose their identity as the Government have decided to disclose the same to honour those warriors by extending State Honour in their funeral," the bench observed.

The same is done with the prior consent of legal representatives of such deceased Covid Warrior competent to consent, the Court observed.

It asserted that such disclosure, in their honor, is a "message" to the Covid Warriors that the State is alive to their sacrifice and it shall adequately take care of their dependants in the event they lay their lives in service of the Nation.

Case Details:

Case Title: Ananga Kumar Otta v. Union of India & Ors.

Case No.: WP (C) No. 12430/2020

Quorum: Chief Justice Mohammad Rafiq and Justice S. Pujahari

Appearance: Advocate Susanta Kumar Dash assisted by Ashutosh Sahoo, Swetlana Das, NK Das and Smruti Mohanty; Advocate General AK Parija with AGA MS Sahoo (for Respondents)

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