In 1897, John Woodburn, a member of the Council of the Governor General of India, tabled an emergency bill to control the spread of the bubonic plague in the country.
He may not have imagined that 123 years later the Epidemic Diseases Act, 1897, would still remain a key part of India’s epidemic diseases management tool kit. This law, along with the National Disaster Management Act of 2005, has been at the core of the government’s COVID-19 management strategy. The sweeping powers under these laws form the basis for quarantine norms, compulsory masking, prohibition on spitting in public places and most other public health responses seen over the last two years.
Until its amendment in 2020, the Epidemic Diseases Act consisted of only five sections containing the state’s power to declare a dangerous epidemic, adopt necessary measures to deal with it, impose criminal sanctions and immunity for the actions of public officials. Born out of a colonial context, the law bore no mention (and still does not) of the rights of the individual in these circumstances. Its intrusive application is illustrated by a memorandum issued by a group from Poona that called out the British government’s Plague Committee for excesses, such as the rough handling of people, indignity of public stripping and the forcible opening of houses and businesses.
Cut to 2020 and similar forms of physical surveillance were not only going strong but had been bolstered by a new layer of digital technologies. On one hand, we saw migrant workers arriving home in Bareilly, Uttar Pradesh, being subjected to the indignity of being sprayed with disinfectant, and on the other, officials in Karnataka resorted to what Ayona Datta calls ‘self(ie)-governance’, using the mobile phone as a tool for the surveillance of intimate life.
The necessity of a rights-based approach to the governance of public health emergencies has, therefore, been one of the many lessons taught by the COVID pandemic.
The body of public health–related laws, however, extends much beyond the management of rare but devastating pandemics. Its everyday applications include laws that prohibit certain types of harmful conduct (ban on smoking in public places), set standards and norms for others (food safety standards), and seek to empower specific population groups (occupational safety for workers). This chapter traces the evolution of India’s legal framework on public health and its intersection with various facets of the right to privacy using select decisions and policy actions to unravel these complex intersections.
We also deal with the proposed treatment of health data under the Personal Data Protection Bill, 2019, placing this debate in the broader context of the move towards digitization of India’s health data ecosystem.
Also read: ‘Feeding cough syrup seems like Russian roulette’—new book exposes drug regulation in India
Constitutional Framework
The topics of health and public health make several appearances in the Indian Constitution and its interpretation by courts. Article 21 of the Constitution, which guarantees the right to life and personal liberty, has been the medium for the delivery of several fundamental rights, including those relating to privacy and public health. In its landmark decision in Justice K.S. Puttaswamy v. Union of India, the Supreme Court declared privacy to be a fundamental right, deriving its basis from Article 21 and other interconnected rights and freedoms under Part III of the Constitution.
While not explicitly mentioned in the Constitution, the court found privacy to be an intrinsic element of the right to live meaningfully and with dignity. Accordingly, any state interference in an individual’s privacy can only take place in accordance with a procedure established by law, which should be fair, just and reasonable.
At the same time, promoting and protecting the health of the population is one of the core functions of the state. This can sometimes lead to the need for balancing of different rights and interests and, as we illustrate throughout this chapter, courts and policymakers have often resolved conflicts between public health and privacy in favour of the former. But the Supreme Court’s Puttaswamy verdict now makes it clear that any intrusion into an individual’s physical, intellectual or informational privacy has to pass the tests laid down by
the court. To be constitutionally valid, any such interference must be enacted by a competent legislature and should clearly articulate the legitimate object that is sought to be achieved. In addition, any privacy inroads must not be disproportionate to such legitimate objective. In other words, if the objective can be achieved without infringing a fundamental right, the state must do so. Another key ingredient, as spelt out in Justice Kaul’s order in the Puttaswamy judgment, is the need for procedural safeguards in the process. The observations made in Puttaswamy have already paved the way for legal reforms on key issues like the permissibility of same-sex relationships and guidelines on passive euthanasia.
As in the case of privacy, the Constitution also does not explicitly refer to a fundamental right of health or public health. Courts have, however, found several aspects of public health to fall within the scope of Article 21. This includes rights that are directly related
to medical aid and health information11 as well as broader public health outcomes, such as the right to a healthy environment, hygienic working conditions and fair pricing of vaccinations. The ideals of public health are also reflected in the rights against exploitation laid down under Articles 23 and 24 of the Constitution that prohibit human trafficking, forced labour and employment of children below fourteen years in hazardous environments.
The recognition of public health as a state goal comes up even more explicitly in the Directive Principles of State Policy laid down in Part IV of the Constitution. Unlike the fundamental rights, the directive principles are not enforceable against the state. Yet, the Constitution makes it clear that they are ‘nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws’. The directive principles nudge the state towards preserving the health and strength of workers, enabling opportunities for healthy development of children, assistance in case of old age, sickness and disablement, maternity relief and provision of early childhood care.15 But the one provision that stands out in terms of its specific focus on public health is Article 47 of the Constitution.
It provides for the state’s duty to raise the level of nutrition and the standard of living and to improve public health. The article identifies these goals to be among the primary duties of the state and its existence has informed judicial decisions in varied contexts, such as approved standards for drugs,16 sale and consumption of alcohol17 and health-
related budgeting.
Besides articulating the importance of public health, Article 47 also encourages the state to endeavour towards the prohibition of intoxicating drinks and drugs that are injurious to health. At the heart of this provision lies the classic and continuing debate on the bounds of state paternalism and permissible limits on interference with individual liberties. The insertion of this prohibition clause became a matter of significant debate among members of the Constituent Assembly. Those in favour of inserting it invoked grounds of morality,
lessons in religious scriptures and upliftment of Harijans and Adivasis, who it was claimed would be the greatest beneficiaries of prohibition.
On the other hand, critics like B.H. Khardekar of Kolhapur presented both pragmatic and moral arguments against prohibition, arguing that such coercion by the state ‘goes against the very grain of personal liberty’. Interestingly, the men arguing on both sides could only think of examples of other men as the subjects of the prohibition – from the Santhal farmer toiling in paddy fields to Bombay’s young men discussing politics over a beer. This gap in participation and claimed representation remains as relevant to modern-day public health
policies as it was more than seventy years ago.
Currently, several states like Bihar, Gujarat, Nagaland and Mizoram impose restrictions on the sale and consumption of alcohol. Others like Andhra Pradesh, Haryana, Tamil Nadu and Kerala have had similar restrictions in the past. The position of the courts on this issue has been that the state has every right to regulate and even ban the sale of alcohol, which constitutes a reasonable restriction on the right to carry out any trade or profession under Article 19(g) of the Constitution. However, an interesting question has now come up before the Gujarat High Court in light of the Puttaswamy verdict: would a law prohibiting the consumption of alcohol amount to a privacy violation under Article 21?
A set of petitions filed before the high court have challenged the provisions of the Gujarat Prohibition Act, 1949, the constitutionality of which has been previously upheld by the Supreme Court in a 1951 decision. The high court found the latest challenges to be maintainable in light of the changes in the prohibition statute and the Puttaswamy developments. As per the court, the statute in question had ‘never been tested before in context of personal food preferences weaved within the right to privacy’. In the examples below, we discuss a few other instances that bring to light the complex trade-offs involved in balancing public health and privacy interests.
This excerpt from Private and Controversial, edited by Smriti Parsheera, has been published with permission from Harper Collins.