January 18, 2022

Coronavirus and the Constitution of India

The Constitution of India in its Part III guaranteed Fundamental Rights, with Article 21 (Right to Life and Liberty) being a right which cannot be abrogated at any cost. A few rights which have been encompassed under Article 21 includes Right to Health, Right to Food, Right to Privacy, Right to Livelihood and Right to Education. In an attempt to bring new dimension of constitutional status more importance is given to the provisions to control the situation prevailing in the country.

Introduction on COVID -19 -:- According to the report of WHO Coronavirus disease (COVID-19) is an infectious disease caused by a newly discovered coronavirus.

The government has issued several ‘guidelines’ that form the legal framework of India’s ongoing ‘lockdown’. With the decision of making lockdown more serious there are several rights which need to be ascertained to control the position.

In 2020, after a December 2019 outbreak in China, the World Health Organization identified SARS-CoV-2 as a new type of coronavirus. The outbreak quickly spread around the world.

Despite the constant efforts of the government, major states still struggle to enforce the fundamental rights which has been guaranteed under the constitution. There are migrants who were not able to leave the city, struggle to get food and shelter. Shelter homes in Delhi are overcrowded, with social distancing becoming next to impossible. In addition to this, the PDS system suffers from a strong implementation failure, thereby violating the decision of PUCL v. Union of India which guaranteed the Right to Food and other basic rights enshrined under part – III of the Constitution of India.

If we talk about the migrants than we clearly know that there are many migrants residents in Delhi , does not have a permanent address and very likely does not have a BPL card , thereby making it impossible for them to gain food grains from ration shops and hence an infringement of basic fundamental rights .

The Supreme Court, in its landmark judgment of Consumer Education & Research Centre (CERC) and others v. Union of India and others, 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 vigour of the workman”. Specifically there have been an infringement of rights of a healthcare workers covid-19 makes the healthcare workers to fall under the contours laid down in CERC judgment.

Covid-19 brings into sharp focus the right to health as a fundamental right in India. At the core of international human rights standards, and undoubtedly a key component of Article 21, Health sector workers who are the first to be affected have a right to full protection in recognition of their increased vulnerability , as part of Article 21 (Right to Life) and Article 14 (Right to Equality).

The rights of children provided under Article 21 of the Constitution of India (which importantly include protection from abuse and violence) and 21A (Right to Education) — are paramount when schools and educational institutions are shut. While going online is an option available to a few, for the majority, including children in Kashmir, the closure of schools absent the privilege of internet connectivity and ICT access, presents the biggest challenge to human rights.

The problem with the Covid-19 pandemic has been constitute as an Article 21 issue: the right to life, personal liberty, livelihood and dignity. We could consider a different constitutional route.

The Government should have made arrangements for shelters, food and other items for people who were affected by the order of lockdown.

The right to livelihood is comprehended in the right guaranteed by Article 21 of the Constitution that no person shall be deprived of his life except according to procedure established by law.

Right to life is fundamental to our very existence without which we cannot live as a human being and includes all those aspects of life, which go to make a man’s life meaningful, complete, and worth living. It is the only article in the Constitution that has received the widest possible interpretation. Under the canopy of Article 21, so many rights have found shelter, growth, and nourishment. Thus, the bare necessities, minimum and basic requirements that are essential and unavoidable for a person is the core concept of the right to life.

The word ‘life’ as given under Article 21 includes not any mere physical existence but a including the right to work and right to livelihood. The guarantee of personal liberty is contained in Article 21. Likewise, the right to reside and settle in any part of the territory of India is guaranteed by Article 19(1)(e) and the right to carry on any occupation, trade or business which is guaranteed by Article 19 (1)(g).

In Sunil Batra v. Delhi Administration[1], the Supreme Court reiterated with the approval the above observations and held that the “right to life” included the right to lead a healthy life so as to enjoy all faculties of the human body in their prime conditions. It would even include the right to protection of a person’s tradition, culture, heritage and all that gives meaning to a man’s life. It includes the right to live in peace, to sleep in peace and the right to repose and health.

The Supreme Court in Olga Tellis v. Bombay Municipal Corporation[2] (1985 SCC (3) 545), popularly known as the “Pavement Dwellers Case” has held that ‘right to livelihood’ was borne out of the ‘right to life’, as no person can live without the means of living, that is, the means of Livelihood. Since then, the scope and ambit of the right to life has been expanded by the constitutional courts.

The Supreme Court in Peoples Union for Democratic Rights v. Union of India[3], held that non-payment of minimum wages to the workers employed in various Asiad Projects in Delhi was a denial to them of their right to live with basic human dignity and violative of Article 21 of the Constitution.

RIGHT TO SHELTER – In Chameli Singh v. State of U.P[4] a Bench of three Judges of Supreme Court had considered and held that the right to shelter is a fundamental right available to every citizen and it was read into Article 21 of the Constitution of India as encompassing within its ambit, the right to shelter to make the right to life more meaningful. The Court observed that:

“Shelter for a human being, therefore, is not mere protection of his life and limb. It is however where he has opportunities to grow physically, mentally, intellectually and spiritually.

Article 21 play a vital role in the pandemic situation prevailing in the country as it mandates that, everyone has the right to life, liberty and the security of person.’ The right to life is undoubtedly the most fundamental of all rights. All other rights add quality to the life in question and depend on the pre-existence of life itself for their operation.

In Re- Right against continued Lockdown: The foremost right of citizens is the right against continued lockdown. Citizens cannot be quarantined at home unless it is absolutely necessary. It is needless to mention that quarantining restricts the freedom of movement. Besides, it has serious repercussions on the economy and education of children and collegiate students. Hence, lockdown cannot be continued endlessly.

With the COVID-19 health scare not expected to die down any time soon, generating resources (finance and employment) for individuals & business enterprises shall be the next big challenge in the near term. Every day that the relief is not provided would add to the overall delay and further choke our deplorable condition.

Both COVID -19 AND Constitution acts in accordance to a major role in making the situation run smoothly and it is very much clear that both cannot be considered right at a specific point of time as the infringement of the provisions laid down in the constitution is in rise leading to the identification of some of the vital interests of citizens which qualify as rights traceable to Articles 14 and 21 of the Constitution of India becomes imminently necessary in these circumstances but it has a negative impact also but it is very much clear that the greatest threat to equality is the enormous disparity between rich and poor that is created by our economic system, unjust tax laws, and inadequate welfare state.

The COVID-19 crisis makes this injustice even more vivid. But this fight has to be fought politically and not in the courtroom.

[1] Sunil Bhatra v Delhi Administration (1978) 4 SCC 409

[2] Olga Tellis v Bombay Municipal Corporation (1985) 2 Supp SCR 51

[3] PUCL v UOI AIR 1997 SC 568

[4] Chameli Singh v State of U.P 1996(2) SCC 549

Author Details: Bhavana Ladha (Jaipur National University (Deemed University)

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