Faded Human Rights During Pandemic:
COVID pandemic is not a new crisis. Many epidemics like HIV, Influenza virus, Ebola and the like have tormented. What differs is just the intensity. However, wasn’t the nation prepared for such unexpected crisis seeing past experiences? Is the public health system of the country efficient enough to cater the needs of the entire population? The catastrophe in a country tests the effectiveness of the governance system of the country. Everything comes to a halt, but is it supposed to be at the cost of human rights? The Constitution, grund norm of the Nation explicate the idea of human and fundamental rights in different possibilities with ‘reasonable restrictions’. But is the government being an opportunist here to exploit and limit individual freedom under the garb of reasonable restrictions or matches with the proportionate objective sought to be achieved?
Right To Equality: Endangered By The Pandemic?
Right to Equality is one of the most essential features of a democracy. It is the right of an individual to be treated as well by the legislation as others who, if only relevant facts were taken into consideration, would be judged to be in the same situation. The global health crisis of Covis-19 has, however, pushed this right to a relatively endangered position. The floundering of this right can be contemplated by observing the miserable conditions of the migrant workers.
The states which have not taken appropriate measures in order to effectuate the evacuation and settlement of the migrant laborers, have infringed the Article 14 of these laborers. Moreover, a wave of xenophobia swept across the world when racial attacks were being committed under the cloak of the anguish of Covid-19. Similar incident happened in India, when a North-Eastern person became a victim of an unreasonable “racially aggravated assault”. The foundational principles of democracy fail when the citizens of a democratic society discriminate against their fellow members on the basis of racial variation. It is a grave violation of Right to Equality of a person.
“A community is democratic only when the humblest and the weakest person can enjoy possess.”
Right to Privacy is one of the most cherished rights of a democracy. It is intrinsic to an individual’s liberty and dignified life. In the words of Tom Gerety, an American Professor, it is “the control over or the autonomy of the intimacies of personal identity.” However, it is not an absolute right. Certain restrictions can be imposed upon these rights in specific cases. However, these restrictions should be reasonable in nature and in consonance with the greater objective sought to be achieved. It has to be proportionate. The extent to which a limitation is being put should be taken into consideration.
One of the important facets of right to privacy is informational privacy, which refers to the protection of personal information or data of an individual. It is the control that one can have over the information about oneself. Public disposure of private facts is an infringement of an individual’s right to informational privacy. It is against an individual’s right to anonymity. The similar kind of violation can be observed in the recent episodes of collecting and disseminating of personal data of the Covid-19 positive individuals. For instance, the action of releasing a list of all international passengers with their complete residential addresses State of Karnataka for the purpose of their identification is potent threat to their right to privacy. Moreover, the Ahmedabad Municipal Corporation (AMC), in Gujarat, circulated complete details of all COVID-19 positive patients in order to enhance the process of contact tracing. Delhi government went a step ahead and put posters reading “Do not visit. Home under quarantine”, with names and addresses outside homes of people. There is no harm in collecting an individual’s information with his consent for larger public welfare. However, it is an infringement of his rights if his personal information is released in the public sphere as the public sharing of information to this extent might expose these people to the threat of being attacked by people. In the contemporary time, the same is happening. Although the state is collecting data as a part of a combat mechanism against the global pandemic of Covid-19; but, its dissemination by the government as well as the media violates an individual’s right to privacy.
Another challenge to the right to privacy, during the present scenario of Covid-19, is the alleged infringement of informational privacy owing to the built in features of the app. The app collects certain information of the user. There have been petitions filed which have claimed the same. However, the government refuted all such claims and confuted any violation of the users’ right to privacy. But, there are a few legal lacunas of the Aarogya Setu app. The major legal drawback associated with the Aarogya Setu app is the absence of an anchoring legislation. It creates vagueness along the legislative lines. However, it is legitimate to collect personal data in the public interest, but it becomes the duty of the government to protect this information and use it only for the purpose it was collected for. Above all, the law must provide for a suitably empowered statutory authority, with considerable autonomy, to enforce its promised protection to citizen’s data and loss of individual autonomy. The Supreme Court in K. S. Puttaswamy (Retd) v Union of India urged the Government to devise a robust mechanism for data protection. The Court propounded that the creation of a regime requires a careful and sensitive striking of equilibrium between individual interest and legitimate concerns of the State.
Right to Return from Abroad
Does the people stranded in foreign countries have fundamental right to return back? After World War II, ‘right to return’ was adumbrated in Article 13 of UDHR as personal liberty and inalienable right. ICCPR assures, ‘no one shall be arbitrarily deprived of his right to enter his own country’. Also, in Francis Manjooran v. GoI, upheld that right to cross Indian territories is an integral part of Article 21.
Indian citizens, majorly work in Gulf countries for their survival. However, they face discrimination in form of food and medical treatments. It is natural that foreign countries give preferential treatment to their nationals. Government at this hour find it difficult to evacuate them. Personal liberty to enter India can be curbed through reasonable law. SC in K.S. Puttaswamy v. UOI held restriction should be legitimate and proportional. Municipal courts are bound to follow UDHR and ICCPR.
“Restriction should be appropriate, least restrictive and implies necessity”.
Question of Right to Profess, Practice and Propagate Religion During Crisis?
The major controversy revolves around ‘congregation’. The idea of people collecting from all places to worship together comes into conflict with social distancing. The infamous incident of South Korea, wherein people congregated at Church and people became remarkable spreaders of virus. The first incident of India constitutes of people from Punjab who returned from a foreign nation and congregated which turned them striking spreaders of the life taking virus. Thereafter, Tableeghi Jamat in Delhi further worsened the situation across the country. Crucial efforts have been taken at various places to pacify the situation. For instance, Roman Catholic Church broadcasts the sermons. Similar initiatives were taken by National Cathedral in Washington DC.
The paramount idea of Right to Profess, Practice and Propagate Religion under Article 25 is under question. Does Article 21 has overriding effect under Article 25? The plain reading of the text itself hints at the answer. The right under Article 25 can be restricted on grounds of public order, morality and health. The conflict between the two provisions was also resolved by the Court in State of Punjab v. M.S. Chawla. The court proclaimed;
“Right to health is an integral part of right to life. The government is under a constitutional obligation to provide health facilities”.
Two petitions were filed in the Apex Court regarding Tableeghi Jamat wherein Jaimat Ulama -i- Hind appealed to stop communalizing the incident and put a ban across all the activities of Tableeghi Jamat followed by demolition of their office.
The fundamental rights are those rights which do not violate other person’s right. However, by practicing their right to religion it has relatively violated other people’s fundamental right to life.
Right to Burial or Cremation?
“Death is inevitable.”
Ministry of Health and Family Welfare has issued guidelines on ‘Dead Body Management’. It is natural that the confirmed or suspects of COVID are to be kept in isolation, thereby limiting the scope to hospital deaths only. It is evident from guidelines that family members are allowed to attend and perform last rituals, however, state have limited the number of people to be present. U.K. and Sri Lanka committed mistake by making cremations compulsory irrespective of religion. This led to huge dissent and governments were forced to withdraw the same. But it added fuel to fire when Maharashtra Civic Body passed the same provision. “A Muslim man was cremated with honor at Hindu place due to paucity at burial place”. The same was withdrawn as it came in conflict with Article 25 of Constitution. SC in Parmanand Katara v. UOI affirmed that corpse should be treated with dignity and fair treatment under Article 21. However, guidelines do not consider the religion of family of corpse.
“Mode of disposing dead body is an integral part under Article 25. Everyone is entitled to decent burial in consonance with one’s traditions.”
Fear of spreading virus from dead body in case of cremation invoked conscience of individuals in Meghalaya. Though WHO and doctor from AIIMS clarified the stance, but lack of knowledge of individuals violated the corpse’s right.
Manual Scavengers: A Forsaken Occupation?
Manual scavenging is a forced occupation rather than a choice. This caste based role association has afflicted them, both economically and socially. Despite occupation being banned, it still persists. Around 48,000 people have been identified in this occupation through national survey. The data released by Ministry of Social Justice and Empowerment elucidates how death rate has increased by 61% i.e. from 57 deaths in 2015 to 110 deaths in 2019. SC directed to provide them better equipment for secured health. However, during the pandemic they are hit at their worst due to debt bondage, unable to feed themselves and their family, etc. Government didn’t formulate any code or guidelines for them, since the occupation is banned. Delhi while announcing financial relief excluded the most vulnerable section. People who raised themselves from this occupation are again forced into this during crisis for their survival. It is evident from the report that people are forced for the working during lockdown. This impudent behavior results in blatant violation of Article 21.
Similarly, Ministry of Labour and Employment issued notice requiring employers not only to reduce or cut wages but also not to terminate them. However, the ‘unorganized sector’, where huge population is engaged, as usual remains neglected.
Police Brutality: Return to Barbarism
The arbitrary infliction of brutality upon the citizens of any democratic state, for whatsoever reason, is against the constitutional framework of that nation. It is against the principle of natural justice. Judge, Frankfurter J., in Wolf v. Colorado pointed out the importance of an individual’s right to security against arbitrary intrusion by the police. However, there have been many instances of such arbitrary intrusions and infliction of violence by the police under the garb of ensuring the maintenance of social distancing. It is indisputably the responsibility of the authorities to maintain the same, however, it cannot justify the compromise of the principles of natural justice and constitutional provisions. The same was also upheld by a bench of S. Manikumar, C.J. and C.K. Abdul Rehim and C.T. Ravikumar JJ and propounded that:
“We are of the firm view that, right of personal liberty guaranteed under Article 21 of the Constitution of India should not, at any rate, be infringed by arresting an accused, except in matters where arrest is inevitable.”
During a time like this, when a global has already endangered considerable number of human lives, the co-operation from police as well as the citizens can help in mitigating the aftermath of this lethal pandemic. Community Policing, or in common parlance referred to as neighbourhood policing can come across as a potent antidote to the prevailing pandemic nodes. Resorting to violence or inflicting brutality cannot alleviate the same as, in the words of Bart de Ligt:
“The more violence, the less revolution.”
Justice Bhagwati in Francis Coralie Mullin v. The Administrator, UT of Delhi, asserted;
“Article 21 is a fundamental right that has a highly activist magnitude and it embodies a constitutional value of supreme importance in a democratic society.”
The Apex Court has taken suo- moto cognizance of matter titled ‘Contagion of COVID 19 Virus in Prisons’. The Court affirmed prisoner’s right to be protected under Article 21. It asked the States to constitute High Powered Committee to discuss as to which category of prisoners should be released. It would take into consideration many factors like nature of offence, punishment, facing trial or not, etc. But the states followed a conservative approach and did not release sufficient prisoners. Owing to the overcrowded and callous state of prisons, the prisoners are exposed at a higher risk during such pandemic. Liberal forms of interim bail or suspension of sentence, Furlough, Parole etc. should be granted. The conundrum of liberty v. security should be achieved at a stage where right to life can be enjoyed as effectively as possible.
Access to Justice: An Unlevel Playing Field?
The Preamble of the Constitution envisages the very idea of Justice be it Social, Economic or Political. Article 39 assures that economic condition is not a bar and the same has been affirmed by Apex Court in Centre for Legal Research v. State of Kerala. Access to justice is an inalienable human right as asserted in Anita Kushwana v. Pushap Sudan. But how far is this from reality? Many reports and surveys are corroboration of the fact that there lies a huge pendency in court proceedings and sometimes it takes generations to see the end decision. The delay in law is itself the breach of the constitutional order.
“It is crucial to ensure speedy disposal to promote justice and it is the duty of the state to observe its actions to make fundamental rights under part III, more meaningful”.
Can justice be provided in the era of e-courts and e-governance? There is paradigm shift during this catastrophe when the courts decided to deliver justice virtually. But it remains a fallacy as in the span of digitization, where technological advancements flourished, digital divide followed. There is gargantuan population of the country which counts as illiterate and it is difficult for them to cope up the situation.
The words of Justice Deepak Gupta in his farewell speech is notable. He pointed towards the inability of vulnerable sections to approach court to raise their voices against prejudices. He says, the courts today favours rich people.
The biggest challenge to a true democracy is ensuring an unfettered guarantee of human rights to its citizens. It is the duty of every government of a democratic state to safeguard the basic rights of its citizens even in the times of complexities and dolor. The state can, by all means, curtail certain rights with the objective of greater good and public welfare. Certain level of limitation or derogation of some rights for legitimate purposes, such as to protect public health, can be allowed. However, there should be strict boundaries on when, how and to what extent rights may be limited. The curtailment has to be within justifiable limits. The extent of such limitations should not supersede the basic constitutional guarantees provided to an individual. It should not be arbitrary, extra constitutional or ultra vires. If the said curtailment of human rights has any of these components, the very essence and existence of a democracy stands defeated as:
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Author Details: Archie Anant and Naina Agrawal (Rajiv Gandhi National University of Law, Patiala)