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Global Freedom of Expression

Kush Kalra v. Union of India

Closed Expands Expression

Key Details

  • Mode of Expression
    Pamphlets / Posters / Banners
  • Date of Decision
    December 9, 2020
  • Outcome
    Motion Granted
  • Case Number
    Writ Petition No. 1213 of 2020
  • Region & Country
    India, Asia and Asia Pacific
  • Judicial Body
    Supreme (court of final appeal)
  • Type of Law
    Constitutional Law
  • Themes
    Privacy, Data Protection and Retention
  • Tags
    Right to Privacy, COVID-19

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Case Analysis

Case Summary and Outcome

The Supreme Court of India held that neither the State Government nor the Union Territory could paste posters outside the residence of COVID-19 positive persons. The petitioner had contended that affixing posters outside the residences of COVID-19 positive patients violated  fundamental rights, including the right to privacy and right to life with dignity. The judges agreed that such a practice was unnecessary, counter-productive, and would lead to stigmatization of people and their treatment as ‘untouchables’. While the judgment was silent on the privacy aspect, as the orders had been withdrawn by different State governments, the judges did hold that such an action could be taken only after directions from the competent authority.


Facts

Mr. Kush Kalra, a Delhi-based advocate, filed a public interest petition in the Supreme Court of India seeking directions to stop the pasting of posters outside the residences of COVID-19 positive persons who were under home isolation. The petitioner also sought an end to the revealing of names of COVID-19 positive persons by the officials of the Health Department and an end to the circulation of names in the WhatsApp groups belonging to the residential welfare associations, neighborhood welfare groups and apartment block groups.

In one of the hearings of the case, the Supreme Court had verbally remarked that the pasting of posters outside the homes of COVID-19 patients led to their treatment as “untouchables”. Without issuing any notice to the central government, the Court had earlier asked them to do away with this practice.

The Court was also told that the central government had not issued such guidelines to the State governments and Union Territories. Despite this, the practice was prevalent everywhere and officials of the State government were affixing posters outside the houses of people affected by COVID-19.


Decision Overview

The case was presided over by Justices Ashok Bhushan, R. Subhash Reddy and M. R. Shah of Supreme Court of India. The central issue was whether the decision to affix posters outside the residences of COVID-19 positive patients was violative of their fundamental rights including the right to privacy and right to live with dignity.

The petitioner had put forth five major contentions: firstly, that the affixation of posters led to violation of the right to privacy guaranteed under article 21 of the Constitution of India, reiterated by the Supreme Court of India in the case of Puttaswamy v. Union of India [(2017) 10 SCC 1]; secondly that the posters led to public scrutiny (or gossiping) of the private lives of the individuals which destroyed the very ethos of one’s dignity; thirdly that the COVID-19 positive persons should not be denigrated merely because they have contracted the illness and that the discrimination on the basis of illness would violate article 14 of the Constitution; fourthly that COVID-19 positive persons were already subjected to restrictions by the State in the form of isolation which is a harrowing experience, affixation of posters would further curtail the rights of such persons guaranteed by article 21 of the Constitution; fifthly that the pasting of posters was counterproductive since people deliberately chose not to test themselves in order to shield themselves from the undue attention, public embarrassment and stigmatization [p. 6].

The solicitor general on behalf of the central government asserted that guidelines had not been issued by the central government nor was it obligatory for any State or Union Territory to paste posters outside the residence of COVID-19 positive persons. He also submitted a letter issued by the Ministry of Health and Family Welfare to the States and Union Territories clarifying that the guidelines do not contain any instructions or guidance regarding the affixing of posters or other signage outside the residences of those found COVID positive [p. 8]. It was also submitted that the State of Punjab and NCT of Delhi which had earlier issued directions for affixing posters outside the residence of COVID-19 patients had withdrawn the said orders [p. 12].

After hearing contentions from both sides, the judges observed that no State or Union Territory was required to paste posters outside the residences of COVID-19 positive persons. The judges further held that such an action could be taken only after direction from the competent authority under the National Disaster Management Act, 2005 [p. 13].


Decision Direction

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Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

The Supreme Court didn’t decide whether the pasting of posters outside the houses of COVID-19 positive patients would violate their right to privacy and right to life with dignity since the orders had already been withdrawn by the State governments and additional clarifications were issued by the Central government to end the pasting of posters. However the judges did remark that such a practice was unnecessary, counter-productive, and would lead to stigmatization of people and their treatment as ‘untouchables’.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

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