This article is written by Geet Jethwani and Devendra Bankar. In this article, the author mentions the Fundamental Rights and tackling of COVID-19 outbreak.
Inter arma enim silent leges is a Latin phrase meaning “In times of war, the law falls silent.” – Cicero
The public health challenge resisting against novel Covid-19 has precipitated a massive and widespread humanitarian crisis in the country. To control the effects of this contagious virus, India imposed a lockdown in the country and restricted the fundamental rights to movement available to all the citizens under Article 19(1)(d) of the Indian constitution by imposing reasonable restrictions in the virtue of Article 19(5) which is the concern of “general public interest”.
Adopting a liberal interpretation, the Supreme Court has read several rights in article 21 to make life more meaningful and worth living. With the expanding horizons of right to life, the fundamental rights that are affected by Covid-19 are right to health, food, shelter. Whereas right to earn livelihood, education, privacy and women to be treated with decency and dignity can also be violated. Covid-19 has put striking challenges to these constitutional rights.
Table of Contents
Right to Earn Livelihood
Continuing to wreak havoc on thousands of lives and millions of livelihoods across the world, we call on the governments to carry out all efforts to ensure security of the people especially those from the vulnerable sectors. The loss of livelihood has impacted the ability to pay rent as well. The central government announced a relief package of 1.70 lakh crore rupees to provide free food and cash transfers to the poor and health insurance for health care workers. State governments like Punjab, Tamil Nadu, West Bengal, Haryana, Delhi and Uttar Pradesh government acknowledged the need for employment wages.
Right of women to be treated with decency and dignity
Restrictions of the lockdown can be necessary, but they increase the risk of violence towards women trapped with abusive partners. Jammu and Kashmir HC takes Suo Moto cognizance of the negative impact of lockdown on women. It even ordered the courts to treat cases of domestic abuse as urgent and proceed with the matters in accordance with the circulars issued regarding the procedure to be followed to ensure social distancing.
Right to Education
Closure of all educational institutions, momentary loss of learning and developmental opportunities for lakhs of children across the country. Online lectures have become the other alternative nowadays but the education under Art.21(a) is not happening and due to that mid-day meal policy is also getting affected. On the other hand, disparity happening through online education whereby the marginalized children are at bigger risk due to not having the internet access and non-availability of smartphones or computers.
Right to Health
The repercussion of lockdown is that people are not able to go to the doctors in the regular course which jeopardizes their Right to Health. Personal protective equipment (PPE) kit prevents transmission of the novel coronavirus not only in treatment centres but also various activities like waste management, cleaning etc. In the Supreme Court judgement of Consumer Education Research Centre vs. Union of India (1995) held that Right to health is a fundamental right of the people. The right to health of workers who are working in hazardous industries fall into this category. We as responsible citizens need to take care of ourselves and give guarantee to the right to health who are our front line soldiers during this time.
Right to Privacy
Right to privacy guaranteed in 2017 and has been interpreted as a part of Article 21 under the Puttaswamy judgement is again being violative.6 Government has published the name of corona patients publicly with their residential addresses. This is where the privacy of the people is getting violated and the government should mitigate and hold accountable for such kind of violation of rights. The state is even ignoring the individual privacy becomes more concerning by the launch of Aarogya Setu App, which tracks movement and health details of personal data users. Consequences of the same can be known in the months to come.
Right to food, shelter and sanitation
At the moment we have 3x buffer stock lying in our graveries. Rabi crop is ready to be harvested. Graveries must lease the food to make a space for the new crop to come. The Government however does not have an adequate public distribution system. The Delhi HC considering the application for urgent reliefs in Delhi Rozi Roti Adhikar Abhiyan vs. Union of India, a pending case which challenges making aadhar card mandatory for receiving the benefits under the National Food Security Act. The main thing that needs to be pointed out is that, right to food cannot be made dependent on the registration of aadhar as both operate in different fields.
Believing that it is the constitutional right of citizens and migrants to get their basic needs fulfilled, for that Aurangabad bench of the Bombay High Court stated that it also their duty to maintain peace, harmony and the spirit of brotherhood, especially during the Covid-19 pandemic.
Tackling of Covid-19 outbreak
The outbreak of COVID-19 has affected the whole world in a number of terms. At present there are more than 5 million confirmed cases worldwide and more than 3 lakh people have lost their life. India, at present is one of the worst affected Country; with more than 1 lakh confirmed cases.
Government is taking efforts to mitigate the crisis as soon as possible. But right after the Tablighi Jamaat incident the graph of COVID-19 pandemic is increasing exponentially every day. In order to tackle the crisis, the government can learn from those countries who were successful in mitigating COVID-19 Pandemic.
Contact Tracing is considered as one of the best ways to detect and tackle COVID-19 patients. “Contact tracing is a little like detective work: Trained staff interview people who have been diagnosed with a contagious disease to figure out who they may have recently been in contact with. Then, they go tell those people they may have been exposed, sometimes encouraging them to quarantine themselves to prevent spreading the disease any further. Think of it as part public health work, and part investigation”9. Kerala is one the best examples in this regard. At the initial stage Kerala was one of the worst hit state in India due to COVID-19, but the state was successful in mitigating the crisis because “thousands of state-employed health workers and volunteers equipped with maps and flowcharts conducted aggressive contact-tracing and brought the situation under control”.
The success of this technique depends on to how much extent people are abiding to it. Government has already imposed a lockdown in the country to stabilize the issue. But still people are forced to go out for the purchase of commodities. Efforts should be made to make the essential commodities available to the people at door step.
Invoking several laws to control the crisis
Government is imposing and invoking several legislations in order to make sure that the crisis has been dealt with carefully.
Amendment to Epidemic Disease Act, 1897
The epidemic disease act was enacted after the whole world was hit by plague. The Epidemic Disease Act of 1897 had only 4 sections, but a need was felt to amend the few sections after doctors and nurses faced brutal attacks from the patient. “President gives assent to promulgation of Ordinance to amend the Epidemic Diseases Act” 11 Under the said amendment “Violence as defined in the Ordinance will include harassment and physical injury and damage to property. Healthcare service personnel include public and clinical healthcare service providers such as doctors, nurses, paramedical workers and community health workers; any other persons empowered under the Act to take measures to prevent the outbreak of the disease or spread thereof;”. The amendment seeks to impose heavy penalties on the accused thereby ensuring the safety of doctors and other health care employees. Further “The amendment makes acts of violence cognizable and non-bailable offences. Commission or abetment of such acts of violence shall be punished with imprisonment for a term of three months to five years, and with fine of Rs.50,000/- to Rs.2,00,000/-. In case of causing grievous hurt, imprisonment shall be for a term six months to seven years and with fine of Rs.1,00,000/- to Rs.5,00,000/-. In addition, the offender shall also be liable to pay compensation to the victim and twice the fair market value for damage of property”.
Invoking of the National Disaster Management Act, 2005
The National Disaster Management Act “provides for the effective management of disasters and for matters connected” to disasters like COVID-19.
Some important provisions which can be invoked amid lockdowns are:
The Modi government is using two laws to tackle corona spread. National Disaster management Act, 2005 and Epidemics Disease Act, 1897 in tandem to tackle the coronavirus outbreak.
The government forgot to consider and fulfil the basic guidelines neck and crop which needed to be fulfilled at the very ground level. Which are mentioned below:
Section 12 of the NDMA Act pertains to Guidelines for minimum standards of relief.—The National Authority shall recommend guidelines for the minimum standards of relief to be provided to persons affected by disaster, which shall include:
- the minimum requirements to be provided in the relief camps in relation to shelter, food, drinking water, medical cover and sanitation;
- the special provisions to be made for widows and orphans;
- ex gratia assistance on account of loss of life as also assistance on account of damage to houses and for restoration of means of livelihood;
- such other relief as may be necessary.
Section 13 of the NDMA Act pertains to Relief in loan repayment, etc.—The National Authority may, in cases of disasters of severe magnitude, recommend relief in repayment of loans or for grant of fresh loans to the persons affected by disaster on such concessional terms as may be appropriate.
Section 51 of the said Act pertains to “Punishment for obstruction, etc.— Whoever, without reasonable cause—
- obstructs any officer or employee of the Central Government or the State Government, or a person authorised by the National Authority or State Authority or District Authority in the discharge of his functions under this Act, or
- refuses to comply with any direction given by or on behalf of the Central Government or the State Government or the National Executive Committee or the State Executive Committee or the District Authority under this Act,
shall on conviction be punishable with imprisonment for a term which may extend to one year or with fine, or with both, and if such obstruction or refusal to comply with directions results in loss of lives or imminent danger thereof, shall on conviction be punishable with imprisonment for a term which may extend to two years.”
Section 52 of the said Act pertains to “Punishment for false claim.—Whoever knowingly makes a claim which he knows or has reason to believe to be false for obtaining any relief, assistance, repair, reconstruction or other benefits consequent to disaster from any officer of the Central Government, the State Government, the National Authority, the State Authority or the District Authority, shall, on conviction be punishable with imprisonment for a term which may extend to two years, and also with fine.”
Section 54 of the said Act pertains to “Punishment for false warning.-Whoever makes or circulates a false alarm or warning as to disaster or its severity or magnitude, leading to panic, shall on conviction, be punishable with imprisonment which may extend to one year or with fine.”
Section 61 of the NDMA Act pertains to providing compensation and relief to the victims of disaster, there shall be no discrimination on the basis of sex, caste, community, descent or religion.
Whereas in Epidemics Act, 1897 it provides the right not to be asked for rent but if someone violates the same then there are no penalties mentioned in the act as it contradicts as well.
The world has changed dramatically over the last few months because of the coronavirus pandemic. This has resulted in unimaginable loss to the global economy and to human lives has been unexampled in the era of global peace. The speed at which patients are increasing is just intimidating. The Asian development bank has estimated the global economic cost for this virus to be around 2 to 4 trillion dollars.
However, the impact on a large number of the 40 million migrant workers, the one who provides the muscle power to India’s construction, agriculture sector has been very disturbing. Across India, 586 hospitals have been marked as COVID-19 hospitals with over 100,000 isolation beds and 11,500 ICU beds reserved for coronavirus patients. Hotel chains, corporate houses have partnered to convert hotel rooms into facilities for individuals who need to self isolate themselves and be in quarantine.
The Micro, Small and Medium Enterprises (MSMEs) sector, which contribute to 30% of India’s GDP, will be the key drivers of the Indian economy. The government has also announced a Rs.20,000 crore relief package for this sector. The other sectors that need help urgently are aviation, automobile, tourism, and real estate. Other side agriculture is the backbone which accounts for almost 14% of our GDP can recover quickly. The only condition here is that they must be supported by logistics and storage.
- Durga Das Basu, INTRODUCTION TO THE CONSTITUTION OF INDIA, Page number 124(22nd ed., 2015)
- https://www.deccanherald.com/national/covid-19-lockdown-effect-jk-sees-rise-in-domestic- violence-against-women-827072.html
- Section 12 of the Disaster Management Act, 2005, available at https://www.ndmindia.nic.in/images/The%20Disaster%20Management%20Act,%202005.pdf
- Section 13 of the Disaster Management Act, 2005.
- Section 51 of the Disaster Management Act, 2005.
- Section 52 of the Disaster Management Act, 2005.
- Section 54 of the Disaster Management Act, 2005.
- Section 61 of the Disaster Management Act, 2005.
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