The CORONA virus Pandemic is a huge global challenge and needs to be dealt with in all seriousness. While some amount of restriction of the rights and liberties to the extent to which it is reasonable and necessary may well be justified and would be Constitutionally permissible, but not in a manner that is disproportionate to what is actually required. There is also a tendency of the population to acquiesce with the control over their liberties expecting that this is being done in their best interests. This deference to surrender of fundamental rights is also witnessed in the media and judiciary. Same is the logic applied at the time of legislating draconian laws in the name of national security such as UAPA and AFSPA. Therefore while supporting a lot of measures for the fight against CORONA virus, it is important to recognise the continued importance of civil liberties and human rights – which are guaranteed under Chapters III and IV of the Constitution of India- the Fundamental Rights and Directive Principles chapters. Undoubtedly there can be restrictions on these rights but only to a limited extent and proportionate to the mischief sought to be dealt with and legitimate state interest sought to be protected.
Under Article 352 of the Constitution a national emergency can be declared if the security of the state or any of its territory is under threat due to war or external aggression or armed rebellion and upon declaration of such emergency some of the civil liberties can be suspended. Under Article 361 the President can declare ‘financial emergencyâ€. But the provision of financial emergency does not entitle the Executive or Legislature to curtail fundamental rights which remain fully operational. At present India is not facing any situation like a security emergency or financial emergency, thus neither have been proclaimed. The provisions of Disaster Management Act, 2005, partly the Epidemic Diseases Act, 1897 and the Criminal Procedure Code have been invoked to impose a complete lock down with the intention of limiting the spread of the virus through physical contact. However this imposition of a lockdown has resulted in a virtual abrogation of many of the civil liberties guaranteed under Article 19 of the Constitution including the right to mobility, right to reside anywhere in India, right to organise and peaceably assemble, right to carry on any trade, occupation or vocation.
The present situation of the lock down which in effect tramples upon various civil liberties and human rights needs to be looked at carefully. While the first case of COCID-19 was detected on 30th January, 2020 in India, and the numbers kept on escalating over a period, the national lockdown operative from 00:00 hours on 25th March 2020, was announced only on 24th March giving virtually 4 hours’ notice to people. The Government is aware of the demography and socio economic situation in India. It could have easily planned for travel arrangements for migrants, depositing money into poor peoples account, ensuring proper food distribution, community kitchens and shelters and also sufficient medical infrastructure and equipment. There was no justification for such a short gap between the announcement and imposition of the national lock down. This in itself has led to disastrous consequences for civil liberties and human rights.
While restrictions to a certain extent may be justified the following aspects have to be borne in mind irrespective of the emergent situation.
the restrictions have to be proportionate to the danger sought to be addressed and should be narrowly tailored towards that objective.
restrictions through commands of the sovereign are premised on the ground that minus a coercive order the people will not behave in the manner which is in the best public interest. But for this, people have to be supplied information and time for preparation. An informed and ready population will behave in a manner that satisfies public interest. But in the present case what we have witnessed is complete lack of transparency and communication of information at the time of imposing an authoritative and sudden lockdown about the available medical facilities and equipment, food security and housing, recourses for stranded people, number of migrant labourers, homeless people, domestic workers and others who require help, the transparency concerning the PM Care Fund, etc. Instead, on the ground of flouting lockdown restrictions, stranded migrant workers and poor civilians have been met with police brutalities, stigmatised and ostracised.
The Coronavirus situation must be viewed within the wider perspective of human rights- socio economic rights – in India which still has the largest concentration of poor . In an already malnourished, anaemic population , large number of whom are migrant labourers, homeless people, landless labourers, those working in unorganised sector, sex workers, transgenders, orphans, abused women, Dalits, adivasis and many of them divided on basis of caste and communal faultlines – it is vital that all steps to deal with the pandemic bear in mind the socio economic rights of millions of already disadvantaged people. Above all, the most basic human right, the right to food and to receive adequate financial support cannot be postponed till the Coronavirus comes under control. For millions this is a matter of life or death.
It is also vital that the current curtailment of civil liberties is limited to the duration of the present crisis and not a moment beyond that. On the contrary there is currently a live danger of a “ new normal†being created and used by government agencies to expand restrictions of civil liberties and human rights. Continued and widespread surveillance should always be avoided. The patterns by which this particular virus spreads cannot be made a justification for putting in place a surveillance system that will last and be applicable well beyond this time of medical crisis.
Similarly the rights of workers will be further diluted under the guise of economic necessity and national interest. Environmental regulations will be further diluted under the excuse of fast tracking the economy. There is therefore a continued and long-term threat to civil liberties which we have to be wary of and fight against. The latest MHA order released on 15th April 20201 notifying revised guidelines for states and union territories for containment of Covid-19, reasserts lockdown restrictions, while at the same time allowing construction activities during the period of lockdown.
We therefore oppose the disproportionate curb on civil liberties, the violation of socio economic rights of millions of people and the threat to this becoming a new normal in future. We also demand that till such time as restrictions to deal with Coronavirus continue the State must ensure free testing for all (including by paying the costs of tests to private hospitals), free treatment for those affected by the virus, safe and adequate arrangements made to ensure that the migrant workers who want to go back to their hometowns are facilitated, adequate number of community kitchens are established and sufficient free food ration is provided to everyone. Without adequate / mass testing, proper medical care facilities and providing social security measures in order to enable the poor and vulnerable groups the privilege of social distancing, the lockdown with all its restrictions, can never be successful in containing the Covid-19 pandemic. In addition, we also demand that all data from Arogya Setu be permanently deleted from everywhere on a monthly basis and Argoya Setu be scrapped once the present crisis is under control.
Mihir Desai,
Convenor, Ad-Hoc Committee,
People’s Union for Civil Liberties (PUCL), Maharashtra
