The
Law and the Lockdown
It is for the first time in the history
of independent India that the country has come to a total standstill. Given the
grave threat and danger posed by Covid19 lockdown is certainly the need of the
hour. Till the time things get a little stable and the world finally gets a
vaccine, we are left with no other medicine apart from social distancing. The need of the hour Lockdown imposed by the Central government
gives rise to certain questions regarding the constitutionality of the lockdown
and the measures taken by the respective governments.. This is probably the first instance in the
history of India where an infectious disease is testing itself in the
Constitutional waters.
The
fundamental rights are enshrined in Part III of the constitution of India.
These rights inter-alia include individual rights common to
most liberal democracies, for instance equality before law, freedom
of speech and expression, freedom of association and peaceful assembly,
freedom to practice religion, and the right to constitutional remedies for the
protection of civil rights by means of writs such as habeas corpus. At
this juncture, it is pertinent to understand the meaning of rights. Rights literally
mean those freedoms which are essential for personal good as well as the good
of the community. The rights guaranteed under the Constitution of India
are fundamental as they have been incorporated into the Fundamental Law
of the Land and are enforceable in a court of law. However, this does
not mean that Fundamental Rights are absolute or that they are immune
from Constitutional amendment.
One of the key Fundamental right is provided
under Article 21 of the constitution i.e. Right to Life and Liberty. Further,
a few rights which have been encompassed under Article 21 through judicial
pronouncements or Legislative amendments include Right to Health, Right to
Food, Right to Privacy, Right to Livelihood and Right to Education. Rights provided under Article 21 cannot be
abrogated even during the declaration of the National Emergency[i]. In Maneka
Gandhi v. Union of India[ii] the
Supreme Court gave a new dimension to Article 21 and held that the right to
live is not merely a physical right but includes within its ambit the right to
live with human dignity. Elaborating the same view, the Court in Francis
Coralie v. Union Territory of Delhi[iii] observed
that:
“The
right to live includes the right to live with human dignity and all that goes
along with it, viz., the bare necessities of life such as adequate nutrition,
clothing and shelter over the head and facilities for reading writing and
expressing oneself in diverse forms, freely moving about and mixing and
mingling with fellow human beings and must include the right to basic
necessities the basic necessities of life and also the right to carry on
functions and activities as constitute the bare minimum expression of human
self.”
Another
broad formulation of the theme of life to dignity is to be found in the
matter of Bandhua Mukti Morcha v. Union of India [iv]Characterizing
Art. 21 as the heart of fundamental rights, the Court gave it an expanded
interpretation. Bhagwati J. observed:
“It
is the fundamental right of everyone in this country… to live with human
dignity free from exploitation. This right to live with human dignity enshrined
in Article 21 derives its life breath from the Directive Principles of State
Policy and particularly clauses (e) and (f) of Article 39 and Articles 41 and
42 and at the least, therefore, it must include protection of the health and
strength of workers, men and women, and of the tender age of children against
abuse, opportunities and facilities for children to develop in a healthy manner
and in conditions of freedom and dignity, educational facilities, just and
humane conditions of work and maternity relief.
“These
are the minimum requirements which must exist in order to enable a person to
live with human dignity and no State neither the Central Government nor any
State Government-has the right to take any action which will deprive a person
of the enjoyment of these basic essentials.”
With
the inception of the lockdown, public discourse was shaped around
three major rights. These were the Right to Life (wages for self-sustenance),
Right to Health, and the Right to Food. All these rights are embedded in
Article 21 of the Indian Constitution.
States
like Delhi, Uttar Pradesh and Punjab in an unprecedented move acknowledged the
need for unemployment wages to ensure self-sustenance of the poor. The central
government too on its own part announced a financial assistance package which
was aimed at people at the bottom. But the schemes announced by the state
governments are also plagued with major loopholes. There seems to exist a large
gap between those who need it versus those who are availing it. The Employees
State Insurance Scheme is available only to those who are in the organized
sector. In Delhi, payment of Rs 5,000 is provided only to construction workers.
There seems to be no measure taken by states like Delhi or Punjab to provide
payment or compensation to others in the informal sectors. One such example is
that of street vendors – a group which has been well-documented and covered
under the Street Vendors Act. Therefore, measures to award unemployment
benefits to workers seem to be arbitrary and without any reasonable classification.
Clearly the steps taken by the state are not sufficient and what we need is a
more robust and perhaps direct transfer of funds to all the workers whether or
not they work in the organized or unorganized sector. India can perhaps learn something from the
Canada. Canada has announced that the state would work with provinces and
territories through a new transfer to cost-share a temporary top up to the
salaries of low-income workers (those who earn less than $2,500 per month on a
full time basis), that the provinces and territories have deemed essential in
the fight against COVID-19. This will provide a much needed boost to those on
the front-line in hospitals, those caring for seniors in long-term care
facilities, those working so hard to make sure that there that is food on our
shelves and tables, and others.[v].
Similarly it has announced that it would be providing $675 million to give
financing support to small and medium-sized businesses that are unable to
access other COVID-19 business supports, through Canada's Regional Development
Agencies.[vi]Similarly
the British government has guaranteed that all employees will be paid 80% of
their regular wages for the period that they are off work due to the corona
virus. These measures might have put the government expenses in jeopardy but
these are the requirement of the hour. The government must take some drastic
economic steps so as to provide some sort of basic subsistence allowance to
those working as daily wage earners even in the unorganized sector as well. The
Pradhan Mantri Jan DhanYogna could help in direct transfer of funds in
the bank accounts. The move might sound a little too socialist step but we also
need to understand that the drastic measures are the need of the hour. The
direct transfer of funds would not only help them in maintaining their right to
life with dignity but would also serve as a big psychological boost Similarly a
relief package is also the need of the hour especially for the small and medium
sized business operatives. If the relief is not announced soon then the
business operatives would be left with no other choice but to lay off their
employees which would have a claustrophobic effect on the nation as a
whole. . “Kyunki agar jaan hain tabhi
toh jahan hain”.
Similarly
another critical right which in most likelihood is violated is the right to
health of the health workers. The Supreme Court, in its landmark judgment
of Consumer Education & Research Centre (CERC) and others v. Union
of India and others[vii],
while enforcing Right to Health of the workers working in a hazardous industry,
held that “the compelling necessity to work in an industry exposed to health
hazards due to indigence to bread-winning for himself and his dependents should
not be at the cost of health and vigor of the workman. The government is trying
its best to procure more Personal Protective Equipment (PPEs) but the numbers
are still not adequate. A critical analysis from Italy shows us that over 100 doctors
and 30 people belonging from the medical staff have died.[viii]. The situation in India is quite bad for the
government healthcare workers. This raises an important question of Right to
Healthcare of the healthcare workers Another pertinent question — who will
protect our protectors?Covid-19 makes the
healthcare workers fall under the contours laid down in the CERC judgment,
thereby making the lack of PPE a grave violation of the Fundamental Rights
of the healthcare workers.
Another new trend which is
emerging is the breach of personal information in the name of Covid 19
tracking. Right to privacy has been recognized as a fundamental right. There
have been several instances where the state working agencies have released
personal data of people who have been quarantined. This data includes names,
passport numbers, residential addresses and phone numbers. This release of
personal data has become a privacy concern and has been stated as a gross
violation of the legitimate expectation of privacy. In R. Rajagopal v. State
of T.N[ix].popularly
known as "Autoshanker case" the Supreme Court has expressly
held the "right to privacy" or the right to be let alone is
guaranteed by Art. 21 of the constitution. A citizen has a right to safeguard
the privacy of his own, his family, marriage, procreation, motherhood,
childbearing and education among other matters. No one can publish anything
concerning the above matters without his consent whether truthful or otherwise
and whether laudatory or critical. If he does so, he would be violating the
right of the person concerned and would be liable in an action for damages.
However, position may be differed if he voluntarily puts into controversy or
voluntarily invites or raised a controversy.
On 24th August 2017, a nine-judge bench of the
Supreme Court in Justice K.S. Puttaswamy vs Union of India[x] passed
a historic judgment affirming the constitutional right to privacy. It declared
privacy to be an integral component of Part III of the Constitution of India,
which lays down our fundamental rights, ranging from rights relating to
equality (Articles 14 to 18); freedom of speech and expression (Article
19(1)(a)); freedom of movement (Article 19(1)(d)); protection of life and
personal liberty (Article 21) and others. These fundamental rights cannot be
given or taken away by law, and all laws and executive actions must abide by
them.
The
State ignoring individual privacy becomes more worrying with the launch
of Aarogya Setu App, which tracks movement and health details among other
personal data of the users. As of now, no one is aware of the ramifications
related to the personal data breach. It can only be known in the months to
come. The government authorities may use the judicial pronouncement delivered
in the landmark judgment of [xi]Mr.
X Vs. Hospital Z. The facts of the case were that a man was supposed to marry his fiancee but it was called off
since he was diagnosed as an HIV positive patient and his doctor disclosed this
fact to his fiancee. The man contended that the respondent hospital and doctor
had breached their duty under medical ethics by disclosing the information.
The Supreme Court deliberated on the issue of privacy and the issue of right
which was favored more towards the
public interest. The judgment deals with the conflict between two fundamental
rights-
- Right to privacy
as an extension to right to life
- Right of the fiancee
to a healthy life as enshrined under Article 21.
The
court favored the right which was more towards public interest. The fiancee's
right to life should be protected over the Right to Privacy of HIV patient.
The
court, hence, held that the doctor had done no wrong in disclosing the HIV
positive status to the fiancee.
The
concerns about the privacy regarding the Aarogya Setu App are genuine concerns.
First of all, the app exists in the privacy law vacuum that is India. With no
legislation that spells out in detail how the online privacy of Indians is to
be protected, Aarogya Setu users have little choice but to accept the privacy
policy provided by the government. The policy goes into some detail on where
and how long the data will be retained, but it leaves the language around who
will have access to it vague. As per the policy, “persons carrying out medical
and administrative interventions necessary in relation to COVID-19” will have
access to the data. According to a working paper from the Internet Freedom
Foundation, this “suggests interdepartmental exchanges of people’s personal
information” and is “more excessive than countries like Singapore and even
Israel”. We do not doubt the intention of the state but these are some genuine
concerns which should have been addressed protecting both individuals’ privacy
and public interest at large.
The last right which in out humble opinion
might be hampered is the Right To Education right. The right to education was inserted as a
fundamental right through insertion of Article 21-A[xii]
in .the constitution of India. The Supreme Court first recognized the right to
education as a fundamental right in Mohini Jain v. Union of India.[xiii]
It was observed in this judgment that: 'Right to life' is the compendious
expression for all those rights which the courts must
enforce because they are basic to the dignified enjoyment of life. It extends
to the full range of conduct which the individual is free to pursue. The right
to education flows directly from right to life. The right to life under Article
21 and the dignity of an individual cannot be assured unless it is accompanied
by the right to education. The legislature too by inserting Article 21 A has
recognized this as a fundamental right. Article 21-A says that state shall
provide free and compulsory education to all children of the age of six to
fourteen years. Moreover, the right received legislative mandate with the
promulgation and enactment of Right to (Free and Compulsory) Education Act,
2009. As schools remain closed there is no provision there is no provision for
the RTE Act to make up for the loss of education. In fact, the RTE Act has a
dangerous provision. Section 16 of the Act provides that no student
studying in elementary classes (Class I to Class VIII) will be held back or
expelled. The resultant effect would be that all students studying in government
schools in elementary classes will be promoted without receiving or attaining
the necessary education, thereby making their fundamental concepts weak. These
will have far-reaching ramifications for students in later stages of
competitive examinations .MHRD are looking to introduce online classes but
these are no alternative to classroom teaching. Most of the students living in
urban areas might be well versed in using online tools but there are many who
don’t have an access to smartphones and laptops. Another key drawback is the lack of good
connectivity and network issues. The schools are hesitant in providing full
time tables to students as this would widen the gap between those who have
access to gadgets and those who don’t have an access.
While
on paper the fundamental rights have been enshrined in our constitution but in
reality the State is suffering from faulty implementation of the schemes. The set of problems faced are nowhere in the
radar of the government agencies. However, sooner or later the State will have
to deal with them.
IF A GOOD WRITER LIVES INSIDE YOU, THEN MAIL YOUR BIO, PICTURE WITH YOUR BLOG.... WE WILL SHORTLY PUBLISH IT
JUST MAIL US ON abizchancellor@gmail.com
.
From a CA aspirant, to pursuing bcom hnrs,from someone working at Pwc to someone pursuing law from Faculty of Law Delhi University, life has been a roller coaster ride for Gurkaran Singh. Presently he is pursuing Law from Law centre 2 Delhi University. He has authored a policy document for ministry of law and justice. He has also worked as a research assistant on a book on mediation
AUTHOR: - JAIDEEP BHALLA
(Company Secretary (Aspirant), LL.B, B.COM Graduate, An Investment Portfolio analysts,
First Runner-up winner Moot Court Competition Organised by ICSI Noida Chapter)
Mobile No. 7838684213
First Runner-up winner Moot Court Competition Organised by ICSI Noida Chapter)
Mobile No. 7838684213
Disclaimer:
No reader should act on the basis of any statement contained herein without seeking professional advice. The results & the interpretation has been done on the basis of my understanding of the Act & Rules, where applicable and with reference to the general articles and analysis. The author explicitly disclaims any financial or other liability of any kind arising on account of any action taken pursuant to the results or interpretation of this document. With respect to information available herein before, the author doesn’t make any warranty, express/implied or assume any liability or responsibility for the accuracy, completeness, or usefulness of such information.
For any help/assistance write us on abizchancellor@gmail.com
[i]44th Amendment to the
Indian Constitution.
[ii] 1978 AIR 597, 1978 SCR (2) 621
[iii] 1981 AIR 746, 1981 SCR (2) 516
[iv] 1984 AIR 802, 1984 SCR (2) 67
[vii] 1995 AIR 922, 1995 SCC (3) 42
[ix](1994)
6 SCC 632
[x]2017
10 S.C.C. 1.
[xi]AIR2003SC664;
[xii]86th
Amendment to the Indian Constitution.
[xiii](1992)
3 SCC 666
No comments:
Post a Comment