Can you refuse a Covid-19 test?

Activists and lawyers say yes, as long as you are following all the rules

On May 24, a video of a young boy being brutally assaulted began circulating on social media. A BBMP staffer took matters into his own hands and started beating him up for not agreeing to get tested for Covid at a BBMP testing booth in Nagarathpet.

The video that went viral raised many questions in the minds of citizens. The most important one: Can you refuse to get tested?

Against fundamental rights

Ashwini Obulesh, founder, Dhwani Legal Trust, says that as per the 2017 Justice KS Puttaswamy vs Union of India judgement, the right to privacy is a fundamental right.

“It can be interpreted under Article 21 of our Constitution,” she says.

Any medical tests, hence, can be seen violating this. While this right is not absolute, the judgement has put forward the circumstances in which it can be curtailed: The procedure used by the state is just, fair and reasonable (open to judicial interpretation), and that the restrictions should be proportionate to what the state aims to achieve. “Mandatory testing, hence, cannot be imposed,” she says. However, the state could employ the Disaster Management Act, 2005, and the Epidemic Diseases Act, 1897, to justify its actions. Such testing can only be considered mandatory if the same has been mandated by the government by law, through circulars, notifications or orders.

No shortcuts

Ravikrishna Reddy, president of Karnataka Rashtra Samithi, says that no one should be forced to undergo a test. “Not only that it infringes on their rights, but people are also going through all kinds of hardships and there is no need to add to their burden,” he says.

However, he adds that if he were asked, he would oblige. “I think it is my duty as a responsible citizen. The government is taking the steps to ensure that the spread is curbed and I have to play my role,” he says. Many cases are asymptomatic in nature, and it is best to test as many times as possible so one can self isolate when the need arises, he adds. The way the random testing is conducted should be rethought. The officials are wearing tags. “It should be conducted in a systematic and official way so it inspired confidence in people,” he says. The way the officials handled the last wave created a certain sense of stigma around the virus. While people are more aware now, efforts must be taken so that people are not afraid to give their swabs. “In congested areas and slums, most residents are afraid of the system. Sending rogues and thugs or police acting violently simply adds to the fear,” he says.

People should not also be forced to get vaccinated either. “It should be made affordable and accessible so that everyone has the equal opportunity to get the jab. But, ultimately, it should be a personal choice,” he says, acknowledging that the majority cannot choose to abstain for the sake of overall wellbeing. There are no shortcuts to beating the virus. “You need an honest and scientific system,” he adds.

Complain immediately

BT Venkatesh, advocate says that unless someone is violating the rules by breaking protocol, no one has the right to pull them up for testing. “Register a complaint immediately. Bring it to the notice of the authorities. If you notice any eyewitnesses, ask for their help,” he says.

Violence unacceptable

Maitreyi Krishnan, lawyer, says that the violence is unacceptable, whether or not submitting to a test is mandatory. “Assault or intimidation of any kind is a cognisable offence and the police will have to act upon it and register an FIR,” she says. In cases where a video has been recorded, it could prove to be helpful. However, there are rules of evidence in place that decide how a video is submitted as proof, and the submission will have to comply with them, she adds.

The incident

A boy who refused to get tested at a random testing booth near Dharmarayaswamy Temple, at Nagarathpet, was beaten up by a BBMP official. In the video that went viral, the staffer could be seen slapping and violently twisting the arm of the boy.

BBMP commissioner Gaurav Gupta tweeted in response stating that there was "no question" of forced testing and that an enquiry would be conducted. The Bengaluru Central Division Police registered a suo motu case and filed an FIR against a BBMP booth-level officer. Some reports later suggested that the youngster mistook the testing booth for a vaccination centre and registered himself. It was only when the OTP was generated that he realised it was for a Covid-19 test and refused to take it.