November 26, 2020

Coronavirus: In the Light of Indian Constitution

Covid-19, known by its layman’s name as Coronavirus. WHO declared it to be pandemic. This view traced its origin from the Wuhan city of China. Presently the epicenter of this disease is in Italy and other major parts of Europe, it has also spread its legs in India with a sharp rise of about 170 patients(as on 15/03/2020) coupled with eternal rest of four people.

The pandemic creates encumbrance in the path of legislators, the government and public health professionals with other complex policy changes.

Proceeding towards the Constitutional sentient regarding “health”. Article 38 of the Indian Constitution lays down-“the responsibility of the State to secure social order for the promotion of the welfare of the public health. Article 39(e) pertains to the protection of health of the workers. Article 47 imposes a primary duty of the State improvement of public health, in securing of justice, providing humane conditions of work for the workers, extension of benefits, pertaining to sickness, disability, old age and maternity benefits. Article 48A states that the duty of the State towards providing a good & healthy pollution free environment.

Further judiciary also owed its endowment in the arena of health and environment. In the case of Bandhua Mukti Morcha vs. Union of India[1] it was held by the Hon’ble Apex Court that-“although the Directives Principles of State Policy hold persuasive value, yet they should by duty implemented by the State & it was in this case also that the court had interpreted the dignity & health within the ambit of life & liberty under article 21 of Indian Constitution.

Scientists have pointed out the most effective method to combat the spread of pandemic is through enforced social distancing. Authorities in a number of countries suggested that the people should work from home until the spread of pandemic is contained adequality. Companies and other authorities however do not implement this requirement.

In this post, I want to suggest that giving an employee the choice between:

· Exposure to the coronavirus by requiring them to come to work on the one hand.

· Losing their job, on the other amounts to forced labour under Article 23 of the Indian Constitution.

The Supreme Court interpreted Article 23 in the case of PUDR vs. Union of India[2] it was held that forced labour exists wherever the choices that exists before and employee are not genuine choices at all. The basis of court judgment was- “any factor which deprives a person of a choice of alternatives and compels him to adopt one particular course of actions may properly be regarded as force & if labour or service is compelled as a result of such ‘force’, it would be forced labour.”

In other words, the court understood the word ‘forced’ to mean not just physical force, but as including any situation where an employer was able to leverage their institutional power in order to effectively deprive a work of legitimate choice.

I want to say that logic behind PUDR case applies squarely to coronavirus where a situation arises that an employee is left with no option other than to choose between exposing yourself to a pandemic, contrary to medical advice on one hand & losing your livelihood on the other, it is an illusionary choice i.e. telling them to “work for less than a minimum wage or don’t work at all.”

I, therefore, submit that in case of pandemic which is still treated as “muddle without blend” the only solution exists is self-quaranting there is a presumptive, enforceable right to work from home. Now a situation arises that effective enforcement of Article 23 will nullify the employer’s right to freedom of trade under Article 19(1) (g). Now the question arises, from the above contention, there arises clash between two provisions of Part III. The Supreme Court in recent RTI judgment case upheld ‘doctrine of proportionality’ which means that two rights should be harmonized so that there is least possible infringement of both.

Now the harmonization condition would be where the nature of work requires physical presence, the employer is obligated to put into place all required mechanisms to minimize the risk of exposure according to WHO advice and where the nature of work does not require physical work, Article 23 grants to work from home.

I, therefore, conclude that the State, units, companies should ensure harmonization between their as well as its employee’s interest.

[1] AIR 1984

[2] AIR 1982

Author Details: Ayush Srivastava (Faculty of Law University of Allahabad, Prayagraj)

The views of the author are personal only. (if any)

Leave a Reply

Your email address will not be published. Required fields are marked *