This article is written by Rajat Chawda of the Institute of Law, Nirma University, Ahmedabad. In this article, he discusses the right to dissent in times of a pandemic like Covid-19.

Introduction

Article 19 of the Constitution of India, 1949 protects the right to dissent and protest by guaranteeing freedom of speech, assembly, and the right to ask the government for a redress of grievances. These rights are fundamental to our democracy. 

In India, where the Shaheen Bagh protestors have to terminate their almost 100 days of protest against the government’s decision on the Citizenship Amendment Act to curb the spread of the COVID-19 virus, it becomes necessary to understand whether the government is not overreaching their powers by restricting the dissent in the name of the protection from pandemic? 

To protest against government policies is one of the fundamental rights of the citizen in a democracy. Protection of this right guarantees democracy to thrive. But, in an unprecedented time like this, where the corona pandemic has resulted in a complete global lockdown, businesses are stranded, the government is struggling and trying its best to control the spread of the virus, the right to protest in such a situation seems unclear. 

This article will try to assess the legitimacy of the government’s action to restrict the right to protest during the pandemic, what are the laws empowering the government to do, whether it affects the constitutional values or not.

What are the Laws Dealing with the Restrictions Imposed?

To control the spread of this virus, both the Central and the State Governments are taking stringent measures to curb the spread of the virus. In such a situation, it is important to ascertain what are the laws which are empowering the government to take such measures. It would also be worthwhile to know whether there is any law or provision which empowers the government to restrict the right to protest or exercise freedom of speech and expression in a pandemic like situation?

The dominant law enforced by the State Governments of India is the 123-year-old British-era statute, known as the Epidemic Diseases Act, 1897, which was developed to prevent the spread of dangerous infectious diseases and consists of only four parts: Introduction, powers of Central Government, penalty, and a Protection Clause. Governments have used this Act to pass laws restricting movement following the outbreak of Coronavirus, and the same act has also been used in the past by States to monitor the spread of H1N1 (swine flu) and other similar diseases.

The Act empowers the State and central governments to take the necessary measures to control further spread of the disease. Section 2 of the Act provides that the State Government may take action if it is satisfied that it is threatened by an outbreak and that the ordinary provisions of the law are insufficient. Section 2A gives the Central Government the right to take inspection of ships and vessels in these circumstances and, if necessary, arrest the persons.

Is this legislation sufficient?

It is worth asking whether this enforced law is sufficient to deal with a pandemic or not, whether it empowers the government to restrict the right to free speech and expression or not. 

The answer would be no! The government, under this law, is not empowered to exercise such power. Since India has a federal structure, the power of the centre is limited in matters related to healthcare. It is so because ‘healthcare’ is a matter, included in the state list of schedule seven of the Constitution. Under this particular law, the Central Government can only exercise its powers for the purpose of inspection, quarantine, or when a penalty has to be imposed. This Act does not allow the government’s intervention if the problem becomes worse. It should also be noted that the legislation does not anywhere mention the power of the government to restrict the fundamental rights of the citizen. 

So, how can the government restrict this right in such times? Can a pandemic be declared as an emergency?

Emergency provisions of the constitutions are strange provisions, these provisions have the power to curtail even the fundamental rights which the State cannot do. Provisions surrounding the declaration of an emergency can be found under Article 352 of the Indian Constitution. The emergency under this Article can be declared on the grounds of war, external disturbances and internal disturbances. Earlier, the term ‘internal disturbance’ was considered as a flexible term that was broad enough to include disturbances caused by an epidemic in the world. The term ‘internal disturbance’ was replaced by the term ‘armed rebellion’ in the 44th amendment to the Constitution, but not in Article 355. 

As per the Article 355, the Union Government must protect the state government from external and internal disturbances. This article also empowers the Union Government to check that State Governments are working within the ambit of the Constitution. The effects of the proclamation of emergency, and permission of the Central Government to direct the State Government on the usage of its executive power and legislating laws for the matters related to State list is mentioned under Article 353. Article 358 & Article 359 are the provisions which mentions that certain fundamental rights of the citizens will become unenforceable during the time of emergency.

The report of the Sarkaria Commission involving these provisions, considered the broad interpretation of Article 355 regarding the term ‘internal disturbances’ and also includes nature-based disturbances. 

Under the report, it was stated that ‘Under Article 355, a whole range of action on the part of the Union is possible depending on the circumstances of the case, the nature, the timing and the gravity of the internal disturbance’. Therefore, the constitution also allows to declare a health emergency and can restrict the freedom of speech and expression of the citizens following the emergency imposed.

But it is a peculiar case, till now, the government has declared this pandemic as a health emergency and has only enforced the Epidemic Diseases Act. Then how is the government able to pass orders to restrict the right to protest and the right to assemble, guaranteed by the constitution? The logic is simple, emergencies like this unlock executive powers, it is the trust of the people and faith towards this democratic institution through which the government can pass such orders. But it is no ground to drastically restrict the freedom of speech and expression of the citizens. 

What’s at stake when the dissent is prohibited?

For a democracy to function efficiently, a voice of dissent is an essential component. It is, therefore, necessary to protest against what they perceive as a government overreach in imposing societal restriction or mishandling of any incident by the hands of the executives.

There are two principles on which the entire core of political rights are based upon. The following principles are:

1. It is the right of every citizen to freely elect their government and when they are dissatisfied with its performance, vote it out of power through a legitimate election. This power is granted to citizens under Article 326 of the Constitution. This is the only procedure through which the citizens can get rid of government. This is a peaceful way of transferring power and is one of the great strengths of a democracy.
2. The second principle is to politically participate not only during but also between elections. This principle is undertaken by actively participating in public discourse, debate and policy-making decisions. This participation is the right of the citizen as long as the discourse is conducted peacefully and any form of public action to challenge the government’s proposals or decisions is also constitutionally legitimate under this.

The role of protest and dissent is very crucial for the legitimacy of the constitutionally elected government. If one considers the role of protesters in giving voice to those who are marginalised or unable to demonstrate publicly themselves, such as asylum seekers in detention, the stakes are much higher for them. Therefore, before restraining the freedom of speech and expression, serious deliberation should be conducted.

Is Limiting the Right to Protest against the Constitution?

Till now, we are aware of what is at stake when the freedom of speech and expression is prohibited in a democratic state. It is essential to understand that the vitality of democracy is based on criticism. In many democratic countries, COVID-19 restrictions must be balanced with protections enshrined in human rights provisions. The right to freedom of speech and expression is an implied power which is guaranteed to every citizen of India.

To ascertain whether this implied freedom is being curtailed or not, there are several key points to examine.

• Does the restriction imposed harm the political discussion?
• Does the restriction imposed serve a legitimate purpose?
• Whether the restriction imposed is proportionate in its impact?

In times of pandemic like the coronavirus, to examine whether the restriction imposed is proportionate or not, alternative ways can be examined, whether there is an alternative practical or legislative means of achieving the purpose of the law. In this case, reducing the spread of a virus– that has a less burdensome effect on the implied freedom of political communication.

If these three questions are given regard and applied to the coronavirus restriction, it would be made quite clear that restrictions imposed do limit our freedom of speech and expression, but the restrictions imposed by the state also serve a legitimate purpose- to ensure the safety and well-being of the community and protection from the virus. 

However, the restrictions imposed by the state are not proportionate. The simple argument for this statement is the belief that there is a way to protect public health while simultaneously allowing a form of protest. Instead of modifying the restrictions and tweaking the freedom of speech and expression, the state has selected to go with a wholesale ban on protesting. 

The government could have adopted some changes to restrictions to allow protest as a permitted reason to leave home if protesters observe social distancing rules. This restriction imposed to exercise the freedom of speech and expression could also include limiting cars to members from the same household or to a maximum of two people in states where gatherings are severely restricted.

The way forward

The ongoing COVID-19 pandemic cannot be used to justify the suspension of the right to free speech and expression. People must be free to express disagreement with government decisions, even when it involves criticism of essential public health measures.

Upholding the constitutional rights need not be at odds with the government’s authority and obligation to protect public health and safety. The emergency decree that calls for social distancing, wearing of face covers or masks, and limits on the size of public assemblies can regulate how protests occur. However, regulations should be narrowly tailored to what is necessary to protect public health and cannot be so broad that they ban protest completely or so poorly drafted that they restrict peaceful demonstrations.

Most protesters have been exercising their constitutional rights without threatening the health of their fellow citizens: wearing masks and standing six-feet apart outside hospitals and other places of business to protest inadequate safety precautions; participating in car demonstrations, and launching digital campaigns. If the protestors adopt such appropriate measures to prevent the spread of the disease, then there in nor reasonable justification to restrict the exercise of the right of free speech and expression. 

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