KUSH KALRA versus UNION OF INDIA AND ORS. on 9 December 2020

1. This writ petition has been filed under Article 32 as PublicDInterest Litigation. The petitioner prays for following relief in the writpetition:

“A. Issue a writ of certiorari quashing the decision taken byRespondent Nos. 4 to 38 of affixing posters outside residences ofCovid-19 positive persons who are under home isolation;EB. Issue a writ of mandamus directing Respondent Nos.4 to 38 toissue appropriate Orders to ensure that its authorities put an endto the practice of affixing posters outside residences of Covid-19positive persons who are under home isolation;

C. Issue a writ of mandamus directing Respondent Nos.4 to 38 toFissue appropriate Orders to ensure that its authorities and officialsdo not disclose the names of Covid-19 positive persons to anyperson or resident welfare associations/neighbourhood welfaregroups/ apartment block groups etc.;

D. During the pendency of this Writ Petition, direct RespondentGNos. 3 to 38 to issue appropriate Orders to forthwith stop thecirculation of names of Covid-19 positive persons in any WhatsappGroup belonging to resident welfare associations/ neighbourhoodwelfare groups/apartment block groups etc.; and

E. Pass such other and further orders as the nature andHcircumstances of the case may require thought fit by this Hon’bleCourt.”

2. In the writ petition although apart from Union of India, all theStates and the Union Territories have been impleaded as partyrespondents, but we have not issued notice to the States and UnionTerritories. Learned Solicitor General has appeared for Union of India,respondent No.1 and has also filed an affidavit dated 30.11.2020.

3. This writ petition is being decided without issuing notice torespondent Nos.2 to 38 after hearing the learned Solicitor Generalappearing for Union of India.

4. The petitioner in the writ petition questions the decision takenby the various States and Union Territories and the authorities to affixposters outside the residences of persons who are COVID-19 positiveand are required to stay home isolation. The petitioner prays that directionsbe issued to stop publishing the names of COVID-19 positive personsby the official of the Health Department in the States and Union Territoriesand also to stop freely circulating their names in welfare associations ofcolony and apartment complex which are serious violation of fundamentalrights, right to privacy and right to live with dignity.

5. We have heard Shri Chinmoy Pradip Sharma, learned counselfor the petitioner and Shri Tushar Mehta, learned Solicitor General.Shri Chirag M. Shroff has also appeared for NCT of Delhi.

6. Learned counsel for the petitioner in support of the writ petitionmakes following submissions:

(i) Affixing posters outside residences of Covid-19 positive personsamounts to unprecedented violation of the right to privacy whichis a Fundamental Right guaranteed under Article 21 of theConstitution of India. The importance of the Fundamental Rightto Privacy and its essence stands recognised by this Hon’ble Courtin its judgment rendered in the case of Justice K. S.Puttaswamy(Retd.) vs. Union of India reported in (2017) 10SCC 1.

(ii) Covid-19 positive persons are having to live in their homeswith posters publicly affixed outsides their residences and theirnames being widely disclosed and circulated in public forums arethe most inhuman and indignifying experience. This subjects thepersons into becoming talk of the neighbourhood and their privatelives and illness becomes the topic of idle gossip. Moreover, thedignity of a person lies in the ability to live in the society with A

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respect. When posters are affixed and names are circulatedpublicly, the private life of an individual is subjected to public scrutinywhich destroys the very ethos of one’s dignity.

(iii) Covid-19 positive persons cannot be denigrated merely becausethey have contracted the illness. Illness of a person cannot beBmade a reason or ground for discrimination and differentialtreatment. These are the principles upon which Article 14 of theConstitution is founded. Moreover, the Constitution does not andcan never permit discrimination on the ground of illness and physicalsuffering.

C(iv) Covid-19 with its malefic effects is the most harrowingexperience, both physically and mentally. To add to this is thetraumatising experience of living in isolation and the severecurtailment of freedom. A Covid-19 positive person is alreadysubjected to restrictions by the State in the form of isolation whichamounts to curtailment of rights under Article 19 of theDConstitution. The State cannot be permitted to affix posters outsideresidences and circulate names which leads to further curtailmentof the rights of such persons guaranteed by Article 21 of theConstitution.

(v) The practise of affixing posters is not known or proven toEserve any purpose. The decision to do so has been taken withoutany application of mind. It is extremely important to note thatpasting of posters by the Respondents has turned out to becounterproductive. In order to avoid drawing undue attention incase of testing positive, persons are shying away and deliberatelyFchoosing not to test themselves to shield themselves from thepublic embarrassment and stigmatisation which is being causedby pasting of posters outside their residences. A person who isCovid-19 positive should be at liberty to cope and recover fromthe serious illness rather than having to deal with unnecessaryand undue attention from neighbours and other residents in theGcolony/neighbourhood.

7. Learned counsel for the petitioner further submits that thepetitioner has also filed a writ petition being Writ Petition(C) No.7250 of2020 in the High Court of Delhi where NCT of Delhi has submitted thatno posters shall be posted outside the residence of any home isolationH

patient and all the posters which are already posted outside the residenceof home isolation patients shall be removed. The Delhi High Court noticingthe above submission of the NCT of Delhi has disposed of the writpetition by order dated 03.11.2020.

8. Learned Solicitor General submits that in the guidelines whichhave been issued by the Government, Ministry of Health and FamilyWelfare for home isolation, there are no guidelines for pasting of postersoutside the residence of COVID-19 positive persons. He has referredto the guidelines dated 02.07.2020 issued on the subject (Revisedguidelines for Home Isolation of very mild/pre-symptomatic/asymptomatic COVID-19 cases).

9. Shri Mehta submits that the Department of Family Welfare hasalso issued a D.O. letter dated 19.11.2020 to Additional Chief Secretaries/Principal Secretaries/ Secretaries(Health) All States/UTs that theGovernment of India, Department of Health and Family Welfare, Ministryof Health and Family Welfare Guidelines do not contain any instructionor guidance regarding affixing posters or other signage outside theresidences of those found COVID-19 Positive.

10. We have considered the submissions of the learned counselfor the parties and have perused the records.

11. The guidelines dated 02.07.2020 issued by the Government ofIndia, Ministry of Health and Family Welfare brought on record asAnnexure ‘A’ to the affidavit dated 30.11.2020 of the Union of Indiadoes not contain any guidelines regarding pasting of posters outside theresidences of COVID-19 positive persons rather Government of India,Ministry of Health and Family Welfare has issued D.O. letter dated19.11.2020 which has been brought on record by the Union of India tothe following effect:

“It has been brought to the notice of this Ministry that in someStates, the practice of affixing posters outside the homes of personsfound positive is being followed. There is a possibility that in someStates this practice may also be resorted to even in such caseswhere the positive persons are not under home isolation but havebeen shifted to a COVID Care Centre or are under hospitalization.

2. In this context, the following is reiterated as a guidance for allStates and Union Territories:

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Ai) MoHFW Guidelines do not contain any instructions orguidance regarding affixing of posters or other signageoutside the residences of those found COVID positive.

ii) The Guidelines issued by Central Government in this regardare very clear. The same, issued on 2[nd] July, 2020 for positiveBpatients under home isolation, are attached herewith andcan also be accessed at https://www.mohfw.gov.in/pdf/RevisedHomeIsolationGuidelines.pdfThese Guidelinesmust be followed by all concerned in letter & spirit.

3. I request your intervention to ensure scrupulous adherence ofCMoHFW Guidelines.”

12. Learned Solicitor General has categorically cleared the standof the Union of India insofar as pasting of posters outside the residencesof COVID-19 positive persons. It is stated that neither any such directionhas been issued by the Government of India nor it is obligatory to anyDState or Union Territory to paste the posters outside the residences ofCOVID-19 positive persons. The petitioner in the writ petition has alsopleaded that the State of Punjab and NCT of Delhi which had earlierissued directions for affixing posters outside the residence of COVID-19 patients have withdrawn the said orders and now no posters arebeing pasted on the outside of the houses of COVID-19 positive persons.E

13. Although, various submissions have been made by the petitionerin support of the writ petition but in view of the guidelines issued by theMinistry of Health and Family Welfare which are referable to exerciseof power by the authority under Disaster Management Act, 2005 whichdoes not contain any requirement of pasting of posters against the housesFof COVID-19 patients, the above detailed submissions need noconsideration in the present writ petition. The Union of India has alreadyissued D.O. letter dated 19.11.2020 extracted above to guide the Statesand Union Territories, we only observe that no State or Union Territoryis required to paste posters outside the residence of COVID-19 positiveGpersons, as of now. The State Governments and Union Territories canresort the above exercise only when any direction is issued by thecompetent authority under the Disaster Management Act, 2005. Thewrit petition is disposed of accordingly.

HDivya Pandey