Need a comprehensive law on epidemics in post Covid-19 situation | Opinion
The lockdown, however, does not come without a fair share of problems of its own, the most pertinent is centered around the protection of basic civil rights in this lockdown.Updated: Apr 28, 2020 07:30 IST
Covid-19, also known as ‘coronavirus’, has raised a number of challenges across the globe; practically in different spheres of administration, border crossings, health services, civic behaviour, technology’ diplomacy and so on. Country after country is struggling with the tough choice between saving lives vs saving livelihoods. Whether they should place the country under a lockdown, if so, for what duration, should the entire country be locked down or only few regions, whether it should be a total lockdown that mirrors a curfew or some essential activities should be exempted. These are some of the questions which are frequently being discussed. In a large and diverse country such as India, the challenges are even more complicated, particularly when public health is not a central or even a concurrent subject but purely a state subject.
Entry 6 of the List II (State List) of the seventh Schedule of the Constitution clearly mentions “6. Public health and sanitation, hospitals and dispensaries.” However, a question of public health cannot, and should not, be discussed in isolation from the broader issue of livelihood of the populace.
When India declared a complete nationwide lockdown, becoming one of the first democracies in the world to opt for this stringent measure, there was a string of criticism and concerns, all begging one question – Was the lockdown necessary? One month later, with the benefit of hindsight, everyone not only agrees but also applauds the government’s farsightedness in imposing a nation-wide lockdown.
The lockdown, however, does not come without a fair share of problems of its own, the most pertinent is centered around the protection of basic civil rights in this lockdown. People at the bottom of the socio-economic pyramid, especially migrant workers have been the worst hit by the lockdown. Amid the crisis, one question, among many, conspicuously, remains unanswered: How to balance the ‘civil liberties’ of individuals with the ‘responsibilities towards the community, state and the country’.
In a welfare state (such as India), the “State is obliged to protect and promote the economic and social well-being of the citizens on the principles of equality, parity and public responsibility”. Public responsibility in this context can be understood aptly through the Supreme Court ruling in State of Punjab vs MS Chawla, where the court decided that providing the basic healthcare facilities to the citizens falls within the purview of the fundamental right to life under the Constitution’s Article 21. The verdict is also in resonance with the Siracusa Principles. It is also reflected in the International Covenant on Economic, Social and Cultural Rights which make it obligatory upon the government to treat patients to the highest attainable standard, even during a pandemic.
Further, India, with its vast territory, large but extremely diverse population, and low literacy levels, poses a special kind of challenge to a government trying to develop a nationwide solution to tackle the epidemic. The reckless disregard to the lockdown by some people and the numerous instances of rumour mongering have been extremely problematic for the administration to maintain law and order across the country.
This presents an extremely peculiar position where the government, on the one hand, has to ensure the basic civil rights of people, and on the other, has to curb the outbreak of the disease. Though it might be too early to call, but from the data available, one can easily deduce that countries which have opted for ‘slightly authoritarian measures’, like Singapore, South Korea and Taiwan, despite their proximity to China have prevailed, while countries like the United States, the United Kingdom, Italy either due to their lax or vacillated approach have succumbed to the virus. A cursory inference of this data easily invokes the dogma of whether “desperate times require desperate measures”, meaning whether and to what extent should the government impose restrictions on civil rights to curb the pandemic.
In such testing times, where the entire scenario can be narrowed down to the equation of liberties vs lives, a hybrid approach that encompasses the spirit of both sides should be applied. Drawing the line in such cases, however, becomes an arduous task. This implies that while certain fundamental rights, such as the right to religion or the right to expression can be restricted, the restriction in all such cases shall be reasonable and open to judicial scrutiny. The recent case of T. Ganesh Kumar vs Union of India captures the essence of this quandary, where the Madras High Court rightly dismissed a petition that sought a ban on newspapers.
On a deeper analysis, one can easily attribute this conundrum to the colonial-era Epidemic Diseases Act, 1897, which leaves much to be desired. The four-page long law is dotted with ambiguous and open-ended wording.
However, perhaps the biggest deficiency of the act is its failure to provide an outline of the basic civil rights which the government needs to ensure during the epidemic. The act is neither successful in laying out the course of action, nor in describing the rights of the citizens in such a situation. That combined with its excessive reliance on Section 188 of the Indian Penal Code (where the maximum punishment is six months imprisonment or a thousand rupees) for penal punishment in cases of violation, presents an extremely haphazard state of affairs.
The effect of these shortcomings in the statute is also indicated in several states invoking the National Security Act (NSA) against people who violated the lockdown norms and potentially, put others in harm’s way. However, maintaining the charges of NSA, within the courtroom can be extremely challenging. The Supreme Court in the case of Vikram Singh vs Union of India has held that the punishment must be proportionate to the offence committed, and conviction under an act like NSA requires an exceptionally high level of threshold.
The way forward
The best remedy to successfully tackle the current epidemic and prepare for the future lies in modifying or rather creating a comprehensive legislation that specialises in dealing with such cases. A law that provides a detailed road map of the course of action and a clear demarcation between rights and liberties; the ones that may be restricted by the State and the ones that cannot be restricted.
Quite like the recent Ordinance on Measures to Combat the Coronavirus (Covid-19 Ordinance 2) promulgated by The Swiss Federal Council that has been enacted to take steps to contain spread of the disease and mobilise the capacities required to manage the epidemic, particularly to maintain the conditions required to provide the population with adequate care and a sufficient supply of therapeutic products. The Ordinance has specific provisions for border crossings, export controls for protective equipment, provisions for health care and also measures that apply to population, organisations and institutions. The Swiss Federal Council Ordinance also provides for a three-year jail term for violators. It would do India well to have a comprehensive health epidemic legislation for the country.
(Ishan Khare and Pratyush Nigam are students at the National University of Juridical Sciences, Kolkata)