This article is written by Yatin Gaur, a student, pursuing B.A.LL.B. from Hidayatullah National Law University. In this article, the author discusses the relevance of fundamental rights in the times of COVID-19 highlighting the impact of novel corona on the Fundamental Rights, its implications, and how to uphold them even in these difficult times of pandemic.
The COVID-19 pandemic continues to spread in India at an alarming rate. The number of people infected with the disease continues to surge each day and at the time of writing (24 April), more than 23,052 people are infected with the coronavirus reporting 732 deaths overall. As the situation keeps on worsening, the government is compelled to take drastic preventive measures to curb the outbreak. So, as per the need of the hour, first,the Prime Minister extended the lockdown till 3rd May and now the Home Ministry has announced of extending the lockdown till 17th May.
These measures have been taken to safeguard the public health intended at flattening the curve and preventing community transmission. But, at the same time, it has also given rise to some serious concerns that India has never encountered before in the times of peace.
Apart from the measures including border controls, school, and office closures, bringing a halt to all the economic activities, resulting in further deterioration of the already fractured state of the Indian economy. This disease is now also attacking the most revered and cherished Fundamental Rights guaranteed to us all, by the Constitution of India.
The measures adopted by the government are questioning a whole spectrum of fundamental human rights as provided under part III of the Constitution, such as the right to free movement, right to health, right to privacy, and even freedom of religion. Although it results in curtailing a variety of fundamental rights still the limitations imposed are not arbitrary and stand on the legitimate grounds taking into account the exceptional emergency situations. However, the gravity of the current situation cannot be oversimplified by this argument.
Since the current state of affairs puts both the executive and the judiciary in a dichotomous position. As on one hand, the executive has to enforce the law of land and implement stricter measures to deal with this pandemic. While the Judiciary has to uphold those rights which have been curtailed by the State.
Therefore it becomes essential to explore how in the times of pandemic the various measures adopted by the government are in contradiction with our fundamental rights, and why is it important for us to ensure that such restrictions must conform to our existing legal safeguards and their impact on fundamental rights must be appropriately taken care of.
Right to Health
First and foremost let’s understand the implications of the Corona outbreak in reference to the Right to Health, the safeguard of which is the prime objective behind all these measures.
Although this right has not been expressly stated in the Fundamental Rights enshrined in the Constitution, but the Supreme Court of India in a catena of judgments has held that “Right to health” is a core component of Article 21 (right to life). This also aligns well with Article 47 of the Indian Constitution which deals with the Directive Principles for State Policy (DPSP) laying down directions for the state to improve the standard of public health so that every citizen can have access to quality treatment.
In India, though the government has been very earnest in its response towards ensuring quality healthcare for all without any discrimination. But still, there are some major issues that demand significant attention and response from the government.
Low rates of testing
India ranks extremely low in terms of corona tests done per million population. The reason behind such a low number of tests is that the government lacks in availing adequate testing kits to check patients with Covid-19.
Endangering lives of Doctors and Health workers
The government has failed in providing healthcare workers with adequate Personal Protective Equipment (PPEs). The reasons for lack of PEPs are varied, including rising demand, limited access to supplies, panic buying, hoarding, and misuse, but the risk to the lives of health workers is also real. This situation thus raises a more pertinent question that who will save our saviours?
In the landmark judgment of Consumer Education & Research Centre (CERC) and others v. Union of India and others, the Supreme Court while defining the Right to Health of the workers working in a hazardous industry, stipulated that no workman’s health or wellness shall be compromised if the person has to work in a hazardous industry out of compelling necessity in order to earn bread for himself and his dependants.
In the light of this judgment, the government’s failure to provide healthcare workers with adequate PPE is a grave violation of their Fundamental Rights. Further, in the case of doctors, there is also an added responsibility as they are not working only for the sake of their livelihood but also rendering their services to fight against COVID-19.
Preventing Community Transmission
Further, there are also concerns regarding what will happen if the novel Corona outbreak enters into the third stage i.e. when the source of infection becomes untraceable and community transmission starts happening. Then the situation can get more depressing and the state will have to make more difficult choices. As the Indian medical infrastructure is still not ready to deal with this level of a pandemic.
This can be realised by looking at the cross-country narrative where in order to treat COVID-19 patients they had to weigh the risk factors and de-prioritise older patients affected by the virus, leading to inequality of treatment. Therefore, in order to avoid this horrendous situation, maximum efforts should be made to prevent the transmission from entering into the third stage.
Freedom of Movement
Article 19(1)(d) of the Indian Constitution confers every citizen the right to move freely throughout the territory of India which is further supplemented by the “right to life and personal liberty” clause in Article 21.
Restrictions imposed on freedom of movement are reasonable
This can be better understood in the light of Judicial pronouncement in the case of Kharak Singh v. the State of U.P. where Justice Subbarao gave the definition of freedom of movement in a free country i.e. freedom of movement is comprehensive enough to include that a citizen may do whatever he likes, meet people of his own choices, speak to whomsoever he wants without any fear subject of course to the law of social control.
The lockdown imposed by the Government has instituted mandatory social distancing measures for the entire population, including the suspension of mass gatherings, quarantine measures, physical distancing, closure of non-essential businesses, and public spaces.
At some places, the whole provinces, regions, or cities are under quarantine, prohibiting all kinds of movement in the public sphere without a permit. Anyone violating this lockdown is subjected to thrashing by police and various other sanctions from the authorities such as custodial sanctions in some cases.
However, the elementary freedom to move is said to be curtailed for the greater good and for the protection of public health which seems reasonable as well, considering the gravity of the pandemic and qualifies to satisfy the requirement of “social control” as laid down in the case of Kharak Singh v. State of U.P.
The problem lies in the fact that the present set of restrictions on movement are problematic for those who are homeless, for whom being self-quarantined is not an option such as people with disabilities or old people who remain without care, such as women, and children who are subjected to domestic abuse.
Impact on Migrant Workers
These restrictions are especially challenging for migrant workers who have been hardest hit by this measure. As when the Prime Minister.announced the lockdown giving notice of mere four hours, sparking an exodus, millions of migrants desperately began to flee to reach their hometowns as the future seemed blurred and the fear of getting no work and food in the lockdown plagued their minds. The major highways were filled with men, women, and children, carrying their belongings.
But since the train and bus services were terminated and the state borders were sealed, and having no alternative option, thousands like them in desperation, decided to walk home often hundreds of miles away. Going by the figure out of a total of 40 million migrant workers in India, the present so-called ‘barefoot migration’ amounted to around 500,000 to 600,000 people. Unfortunately, there have been reports that some people even died in this process.
However, both the centre and government responded to the issue but it got very late by then. For now, the Government claims that no migrant worker is on-road and they have been taken to the nearest available shelter. The Supreme court also directed the centre to ensure food, water, medication, beds, and counselling in shelters for the migrants. However, in some places, the living conditions of these shelter homes and the proximity of the inhabitants are still some issues of major concern as especially in Delhi some shelter homes are grossly overcrowded. Thus, this further interferes with the right to food and shelter of the migrant workers, which is also incorporated under Article 21 of the Indian Constitution.
Where the Government lacked
There is no doubt that the lockdown is protecting India from the horrors of the novel Corona outbreak but where the government failed is in the lack of planning that has hit the country’s poorest and most vulnerable citizens hard.
As despite the Government has tried to address the issue by providing shelter and food to the migrants, but the reality is that the sudden suspension of removal operations has left a significant number of migrant workers in unsuitable conditions. As many migrant workers in the absence of work, are now dependent on food charities for survival- some even had to resort to begging.
Further, it is suggested that those people who have been tested negative for COVID-19 must not be forced to stay in shelters or away from their homes and families against their wishes. The government should allow them to go back after making proper arrangements for the commutation to their hometowns and villages.
Right to Education
Another relevant question before the state is to figure out how to implement and enforce the Right to Education in the times of pandemic. Right to Education has been inserted as Article 21-A under the Right to life enshrined in Article 21 of the Indian Constitution. This right further crystallized into a legislative mandate with the promulgation and enactment of the Right to (Free and Compulsory) Education Act, 2009.
As now all the schools and colleges are closed during the lockdown and since there is no provision in the RTE Act as well to make up for the loss of education, so there is no clarity about how will the Government tackle this issue.
Promotion without obtaining necessary Education
Moreover, another issue is that as per Section 16 of the RTE Act, no student shall be held back or expelled until he/she completes elementary education (up to class VIII). Though this section has been amended in 2019, to provide a discretionary power to the appropriate government to hold back the student studying in class V and VIII in case he/she fails in the re-examinations. But since corona-outbreak is an exceptional situation, thus such power will not be exercised. Further HRD Ministry has already advised CBSE to promote all the students studying in class I-VIII to the next grade.
This implies that even without studying or appearing for any exams these students can be promoted to the next grade. This may have dangerous consequences as the fundamental concepts will remain weak and the child may not be able to cope-up in the future, and these differences may surface especially in the case of competitive examinations.
Suspension of Mid-day Meal Schemes
Since the inception of the Mid-day Meal Scheme, the number of children enrolling in the schools has increased significantly. Reports suggest that there is a strong correlation between the number of children enrolling and the Mid-day meal scheme. This seems reasonable too as it provides an incentive to poor parents to not bear the cost of feeding a child (for a meal) since it is covered by the state. However, in the current state of affairs when the food reserves are being directed to feed millions of poor people in India, there are huge chances that the State may suspend the Mid-day meal Scheme temporarily after the lockdown. Therefore, it may lead to a sharp increase in dropout rates.
Increase in Poverty
Various studies have pointed out that there is a direct nexus between poverty and dropout rates. The reason behind this is that poverty discourages the parents from sending their children to schools as they are unable to afford basic educational expenses and also, sending the child to work and earn in the situation of poverty seems to be more enticing. So considering the present case scenario, where all the economic activities are at halt, it will certainly hurt the Indian economy that was already squeezed before the pandemic. Thus there will be an escalation in the poverty rate consequently leading to an increase in dropout rates.
The Government’s response regarding all these issues has been very limited which can be surmised as laying stress over conducting online classes and exams, encouraging e-learning through platforms like Swayam, etc.
However, the sad reality is home-schooling cannot be an alternative for all considering a variety of factors such as the socio-economic background of a child, having no access to other basic internet facilities or IT tools.
Considering the nature of the crisis there has not been much dialogue about what will follow. So, therefore it becomes essential for the Government to lay down strategies and contemplate on incentives for the students in order to find a solution that will cater to the “best interests of the child’.
Right to privacy
The Right to Privacy is though not expressly mentioned in the Constitution but after the judgment of KS Puttaswamy v. Union of India, this right falls within the wide ambit of Right to life guaranteed under Article 21. However, the discouraging fact is that this right has been largely ignored or undermined by the state since the inception of the lockdown.
Release of Personal data
There have been several instances during lockdown where the State Government has disclosed the personal information of people who have been quarantined including their names, residential addresses, passport numbers, and phone numbers. This release of personal data has thus been stated to be a blatant infringement of the right to privacy as pronounced in the landmark judgment of K Puttaswamy v. Union of India.
Aarogya Setu App
With the central government launching the Aarogya Setu App, its official app to fight against the novel coronavirus, questions about its legitimacy in the backdrop of the right to privacy are also being raised. This app basically tracks the movement and health details among other details of the users, then alerts them in case if they come into contact with the other patients who have been tested positive for COVID-19. Similar kinds of measures have also been taken by other European Countries.
However, the reason behind worrying is that the data collected by the app is stored in both the device as well as on the central servers with no legal framework to govern the security of data on the app. Another major concern is that the liability clause in the terms and conditions exempts the government from any liability that may arise out of the unauthorised access to the user’s information or in case of misinformation. As the app continues to collect information about the places the person visited and the people he met thus, such information if leaked, can be misused to keep surveillance over people. But as of now, there is no clarity regarding the implications associated with the data breach.
Therefore, it can be concluded that though the use of such tools may be essential for the state to prevent the COVID-19 outbreak, it is also necessary that it should be backed up by proper legal framework laying down complete information about how the data will be disposed of and protected against a possible breach. The reality is that although the laws guarantee us a plethora of rights, they can never be realised till the time the judiciary and the state make efforts to re-evaluate and fix these implementation gaps.
Right to access information
Any democracy in the world cannot survive without the free flow of thoughts and expressions, as it helps the society to evolve and flourish. Although the Right to access information is not expressly stipulated in the Constitution, the same has been recognised as an inalienable component of Article 19 of the Indian Constitution which guarantees every individual the liberty of thought and expression. It recognizes the right to know as a basic fundamental right. The same has been held by the Supreme court in the landmark Judgements of Bennet Colman v. UOI, SP Gupta v. President of India, and Secretary, Ministry of information and broadcasting v Cricket assn. of Bengal.
Fake news during Corona
However, in these difficult times of the Corona outbreak, there is a huge amount of fake news, rumours, and misinformation doing the rounds. A lot of such content is being recklessly circulated to create a situation of panic and fear among the public. Even the Director-General of WHO, Tedros Adhanom Ghebreyesus has issued a statement that fake news spreads like a wildfire, and is as dangerous as corona itself, while also specifically condemning various kinds of home remedies that can be used as a cure for COVID-19.
Direction by the Supreme Court
So, in order to deal with this situation, the Central Government submitted a status report before the court and sought for the issuance of direction that any form of media whether traditional or social shall not “publish or telecast anything without first verifying the true factual position from the separate mechanism provided by the Central Government.” Thereafter, on the 31st of March, the Supreme Court of India passed a vaguely worded order, directing the media to “refer to and publish the official version about the developments” relating to COVID-19.
Issues in the Order
There is no denial of the fact that the dissemination of such fake news is a big threat and undermines the efforts of governments and health workers. So no one is questioning the actions of the government but the public discourse is rather being shaped by two more pertinent questions that how the purport of the order is not clear and whether the due process as prescribed under Article 19 was followed before the issuing of the order.
Vaguely worded order
Firstly, the present directions given by the court suffers from the problem of ambiguity. This leads to a lack of clarity regarding what it basically implies: does it mean that the court has directed that the media can publish only the government’s version and nothing else? Or does it simply mean that the media must publish the news only after it has been verified with the government? As the order issued specifically uses the expression “refer to and publish the official version about COVID-19”.
It is this lack of clarity that fades the line between what kind of news is permitted and which is prohibited. The outcome of this is that journalists and reporters are sceptical about what the law requires and the censorship mechanism in order to minimise any chance of legal trouble. Interestingly, the Supreme Court in its landmark judgement of Shreya Singhal v. UOI struck down a particular provision of the Information Technology Act, 2000 when it resulted in a much similar kind of confusion.
Further, issuing of such direction by the Supreme Court curtailing freedom of speech is dubious for some other reasons as well. Although Article 19(2) provides scope to restrain freedom of speech and expression on the grounds of reasonable restrictions but specifically lays down that it can be done only as per some “existing law or a law made by the State”.
Therefore, the term “law” used here is very significant as it essentially refers to only those laws that are made by the legislature in the form of statute or in case of legislation, excluding any order passed by the judiciary from its ambit.
In simpler terms, it means the judiciary does not even have the authority or power to impose any restriction on the freedom of speech and expression, even if the restriction imposed by it is reasonable. Rather the only role that the judiciary can play over here is that as per the principle of checks and balances it can ascertain the validity of the law made by the legislature, It means that if in case legislature imposes any restriction curtailing freedom of speech and expression then the court is authorised to decide the legitimacy of such restriction on the grounds of reasonability, which is often called as Judicial Review by the court.
Significance of calling out
Therefore, however important it may be to issue such an order, it can be stated that the deliberative process envisaged by the Constitution has been rendered meaningless. Further even after taking into consideration the fact that the whole situation is so complex and sensitive, such liberties can be taken by the Judiciary for a greater good. But still, it is essential to call out such exceptional measures which if abused can quickly transform a constitutional democracy into a totalitarian state. Thus, a failure to call out such discrepancies can normalise the exception.
Protection against Discrimination
The coronavirus apart from taking so many lives and hitting the global economy hard has also created turmoil by exacerbating the xenophobic and racist narrative worldwide. When in the USA and UK, the Chinese and other Asians are being subjected to discrimination and anti-Asian bigotry, India too is struggling with the rising Islamophobia in the midst of COVID-19.
Rising Anti-muslim Sentiments
Article 14 of the Indian Constitution prohibits any kind of discrimination on the grounds of religion, caste, colour, sex, place of birth etc. But now the coronavirus has been hitting hard this equal protection clause by waging an attack on the secular fabric of India. A series of unfortunate incidents during COVID-19 has intensified the anti-muslim and Islamophobic sentiments across the nation. Especially when the situation was already very sensitive in the light of Delhi riots against Muslims that happened in February, amid the CAA- NRC protest.
Tablighi Jamaat Incident
The major blow to India’s fight against Corona came when the Maulana Saad of Tablighi Jamaat, exhorted his followers to defy pandemic-related regulations and assemble in Delhi. The government claimed that many of these attendees caught COVID-19 and returned home, further transmitting the virus across India.
In this case, what’s depressing is the fact that there was an element of truth behind the government’s claims. According to the reports published, more than 8000 cases of corona directly trace their link with the Tablighi Jamaat. Further, more than tens of thousands of people who came in contact with the attendants have been quarantined.
Misbehaviour and Misinformation
Unfortunately, what followed further triggered the rising anti-muslim sentiments as reports came about some Jamaat members misbehaving with the authorities, spatting with doctors, insulting the dignity of female nurses, and spitting on people or public places to spread Corona. Some allegations were found true but some were just cooked up stories.
These sentiments were then further rekindled with the number of videos being circulated on social media platforms, portraying that the Muslim community was spreading the virus intentionally by spitting on vegetables and fruits.
However, most of the videos were either fabricated, old, or were not from India. But were shared so recklessly that it fuelled a series of discriminatory incidents against the whole Muslim community.
These included videos featuring showing a Muslim man from the Delhi congregation intentionally coughing on somebody. However, it was actually filmed in Thailand, and not in India and there was not any proof that the man was a member of the Delhi congregation.
Then, there was another very old video that got viral, where a bunch of young boys were shown licking spoons and plates. However, it was shot much before corona and they belonged to a sect of Bohra Muslims in which the followers believe in the extreme practice that no such food should be wasted.
Discrimination against Muslims
Within no time tweets like #CoronaJihadtweets #CoronaJihad and #TablighiJamatVirus, flooded social media. Initially, some ministers issued anti- Muslim statements instead of placating the situation. Media also didn’t aware people of the authenticity of the circulated videos.
Reports came about Muslims being beaten up, and the vendors have since been blocked from selling food. Many Muslims were also kicked out of their jobs in food outlets as the sense of insecurity and fear amongst the common people increased. In Punjab, loudspeakers in temples cautioned people not to take milk from the Muslim vendors. Even a cancer hospital was asked to apologise as it refused to admit the Muslim before undergoing a coronavirus test.
Tackling the issue
Although going by the facts, the Prime Minister sensing the gravity of the situation was prompt in his response and tweeted asking everyone to unite in the fight against the COVID-19 and not allow the religion, race, caste, colour, creed, language or borders to become an obstruction in this. He further asked everyone to maintain peace, unity, and brotherhood.
However, tweets are not sufficient to deal with such situations as various officials in the government were still busy playing the blame games. Moreover, media also rather than sensitising, became a fiddle to political motives and didn’t make earnest efforts to separate the facts from rumours. Further, all these fabricated videos were not removed for a long time.
So, although the government got a bit late in taking up the action but as soon as it identified the grave consequences of such backlash against Muslims, India’s health ministry had then stopped blaming Tablighi Jamaat at public briefings. It further issued statements countering prejudices and discrimination against Muslims.
So, it can be concluded that even after the coronavirus will end the communal disharmony will still be hard to kill. Therefore, the Government has to be extra conscious and must ensure that any such provocative material flowing on the internet must be immediately removed. Further, Media houses and other political parties should also understand not to communalise this issue. Hence, it is essential for all of us to protect the spirit of the constitution without discriminating against anyone, and making solemn efforts to preserve the sense of brotherhood and unity in these difficult times of pandemic.
Right to Livelihood
The right to livelihood has been recognised by the Supreme Court as a part of the right to life enshrined in Article 21 of the Indian Constitution. The right to life was further elaborated In the judgment of Olga Tellis v. Bombay Municipal Corporation, where a five-judge bench of the Court pronounced that the ‘right to livelihood’ emanates from the ‘right to life’, as no person can live without the means of living, that is, the means of Livelihood.
But during the lockdown period In India, all kinds of occupations are at standstill barring some essential services such as doctors, pharmacists, grocery, etc. Though there can be no better alternative than to impose restrictions on work in order to curb the corona outbreak. However, it is significant to take into account the issues arising out of such restrictions on the freedom of trade and commerce.
The Government has taken special care of people working in the organised sector, steps have been taken to ensure that people get appropriate wages. Efforts have also been directed to ensure that no one should be kicked out of their job apart from making it compulsory for every company to allow work from home.
Further, the government has announced to pay the entire provident fund contribution of those who earn less than Rs 15,000 per month in companies having less than 100 workers as, despite the efforts, they are still at risk of losing their jobs.
However, these measures may specifically prove problematic for those falling in the vulnerable group of people whose income levels may be significantly reduced being prompted by these redundancies. It includes migrant workers, women, single-parent families, people working in unorganised sectors, self-employed, and those in less secure employment such as the so-called ‘gig workers’ and anyone living in, or at risk of, poverty.
Measures adopted by the Government
So in order to mitigate the losses suffered, people falling in this category have the right to be compensated. With this regard, the government has taken a variety of financial support measures by announcing a stimulus package valuing 0.8%(approx) of the GDP.
The financial benefits conferred by this package can be summarised as follows:
- It includes cash transfers to lower-income households.
- It involves providing wage support to low-wage workers (in some cases for those still working, and in other cases by easing the criteria for receiving benefits in the event of job loss).
- It includes availing food and cooking gas to poor households, etc.
- A number of measures have also been announced in relation to reducing the tax compliance burden across a range of sectors, including postponing some tax-filing and other compliance deadlines.
Apart from this, many state governments have also come forward and announced measures to support the health and wellbeing of lower-income households, principally in the form of direct transfers (free food rations and cash transfers)—the extent of these measures varies by state, but the aggregate amounts to be approximately 0.2% of India’s GDP.
But unfortunately, there is almost very little or no such incentive for the self-employed people, middle-income households, entrepreneurs, and MSME Sector. However, according to the Government, the measures adopted are not exhaustive and further steps shall be taken in the future to mitigate the financial burden resulting from the lockdown.
Right to food
Though, the right to food has been mentioned in Article 47 of the Indian Constitution, that basically deals with the Directive Principles which directs the states to “raise the level of nutrition and the standard of living and to improve public health”. However, food is essential for the survival and growth of an individual. Most of the development of this right has been shaped in the context of Article 21 of the Indian constitution. The same was also pronounced in the judgement of PUCL v. Union of India which guaranteed the Right to Food.
Who will feed people
Since the inception of the lockdown, no fear has troubled the poor and the needy more than the fear of not being able to have access to the food in the times of pandemic. With all the industries and markets closed the spectre of an uncertain future looms sharper and longer.
As essentially these are the people who earn and spend every day having no savings or securities, unlike those engaged in the organised sector. Moreover, the hard fact is that they constitute about 90% of the total non-agriculture workforce engaged in the informal sector. So it means if these people don’t get work they will not have savings to feed themselves and their family.
Does India have enough food to feed people
The silver lining is that even in the time of COVID-19, India has more than enough food to feed its citizens. Currently, the buffer stock of food grain is three times the mandatory requirement. Further, there are indications of a bumper crop this season. But considering the social distancing measures can restrict effective agricultural work the possibilities narrow down. However, a bigger threat comes from the gaps in the distribution system of India.
Measures taken by the Government
The government has taken several measures to ensure that everyone shall have access to food by announcing direct cash transfers to poorer households, mainly through existing government schemes, and providing the elderly, widows and disabled people pension payments for three months in advance, soliciting donation through the PM CARES fund. Efforts have also been directed at ensuring the constant availability of food stock to ration shops.
Challenges in implementation
However, the amounts of money and food provided through government initiatives are insufficient and sometimes delivered slowly. The reasons are varied:
- Some migrants are not formally registered or don’t have BPL cards to avail the benefit of the existing schemes. Thus, they either have to arrange food themselves or have to rely on the NGO for help.
- The government at both the Centre and states are suffering from the logistical dead-end.
- Disrupted supply chains are also making it increasingly difficult to find food to buy at the markets as the farmers are unable to sell their produce while central warehouses have become islands of isolation.
- Truckers are unable to operate freely due to so many restrictions and harassment at the hand of authorities but they cannot find workers to offload food items, nor do they have the goods to carry for the return journey.
This can be further substantiated in the light of the fact that more than seven lakh applications of ration cards are pending in Jharkhand thereby preventing people from availing benefits of the Public Distribution System. Similarly, in Delhi, reports came that more than one-third ration shops were shut citing unavailability of food.
So, although India might not face a severe food crisis, the same cannot be ascertained if appropriate steps will not be taken timely to tackle the existing loopholes. Therefore, it is imperative that the Centre and the State Government must take some action immediately so that everyone shall have equal access to food.
Right to Access Justice
The Constitution has duly recognised the right to equal access to justice under Article 39 A of the Indian Constitution.
Right to access Justice- A fundamental Right
Apart from this, access to justice has also been interpreted as a fundamental right falling within the wide ambit of Article 19 and Article 21 of the Indian constitution as pronounced by the Constitution Bench of the Supreme Court while deciding upon a couple of Transfer Petitions, with several parties eleven seeking transfer of civil cases from or to the State of Jammu and Kashmir while the remaining two seek transfer of criminal cases from the State to Courts outside that State.
The Bench rationalised the judgement by holding that the meaning of the expression “life” as used in Article 21 does not narrow down the scope of “life” merely into a physical existence but essentially refers to a bundle of rights that makes life worth living. In the light of the above observation, the court stipulated that the right to access justice is a facet of right to life as guaranteed under Article 21 of the Constitution and it is highly unreasonable to take justice out of the purview of right to life.
The Bench further observed that if “life” implies not only life in the physical sense but a bundle of rights that makes life worth living, there is no juristic or another basis for holding that denial of “access to justice” will not affect the quality of human life so as to take access to justice out of the purview of right to life guaranteed under Article 21.
Impact of Corona on Judiciary
Against the backdrop of the COVID-19 outbreak, the possibility of the courts functioning soon seems to be far fetched and cannot be realised until the coronavirus is wiped off. This should be further viewed in the light of the fact that there is already immense pressure on Indian Judiciary at all levels and overcrowding of courts is not an unusual sight.
Therefore, the courts cannot start until and unless the pandemic is managed because implementing social distancing measures in such a setting is not practical.
Supreme Courts and High Courts
As soon as the lockdown was implemented, i.e. from the third week of March 2020, the Supreme Court and various High Courts have been using Video Conferencing facilities to conduct proceedings while most of the hearings are postponed.
But there is an urgent need to upgrade the VC infrastructure and fine-tune the technology. As, essentially speaking, though the judiciary is putting its best to deliver justice even in the times of pandemic, still, the fact is that there exists only one or two benches that are in operation in most of the Constitutional Courts (which happens in the case of vacations).
Therefore, it is imperative that such systems should be upgraded, fine-tuned, and enhanced substantially so that every Bench in all the Constitutional Courts must begin functioning soon with all their strength and capability to render justice.
But a much greater challenge is waiting ahead in the 700 District Courts to ensure access to justice for all. As essentially it is in these trial courts where the foundational litigation begins.
So, although in metros’ and cities’ facilities like e-filing of the cases, VC and broadband, are available. With some places even having the vulnerable witness courts but even then also the physical presence of the litigants is necessary. While the Supreme Court in 2003, has recognised the recording of evidence via VC but still there are a plethora of questions that need to be answered which involves:
- Thinking of an arrangement for a victim’s participation in a trial.
- Ensuring access to the Prosecutor to protect his/her rights.
- Right of accessing and instructing the lawyer and making strategies to fight the case through jail visits.
- Similarly, how the video conferencing will ensure confidentiality and the privacy of the clients and lawyers.
- To ensure the security and sanctity of witness testimony during VC evidence.
Further, there are no provisions governing the recording of evidence via VC in either CPC or CrPC. This problem worsens even more in case of rural areas where even having access to a smart-phone is difficult, implementing these measures is nothing but a hypothetical consideration in the current state of affairs.
Therefore, till the time we don’t have a concrete law or legislative enactment to give an answer to all these questions very little can be done in the times of COVID-19. So more or less the maximum burden has to be shared by the metro courts, the High Courts and the Supreme Court of India, which can still up to some extent render justice in these difficult times.
Thus, after having such a detailed and comprehensive discussion on the relevance of fundamental rights in the times of COVID-19, we are in a position to draw out some reasonable conclusions. It can be rightly put that many of these measures taken by the Government reflect that how in exceptional emergency situations, the restriction on fundamental rights such as the freedom of movement and of assembly, freedom to profess religion can all be held justifiable. The state is vested with another more essential duty, i.e. duty to ensure health and wellness.
So, although the measures taken by the government and the authorities to fight against the pandemic are appreciable, still it is imperative to criticise the government to shape a positive public discourse that can motivate the government to improve further.
This basically implies that it is essential to demand a stronger public health response from the state to protect life during the pandemic while also maintaining a balance with human rights. In the words of Michael O’Flaherty, Director of the EU Agency for Fundamental Rights, we can say that it is not a zero-sum game, the more we start strengthening and respecting human rights the better will be our public health strategies.
Furthermore, what needs to be ensured is the fact that such laws imposed by the government, infringing the basic human rights shall not remain in force after the pandemic gets over and even in the times of emergency must be enforced in a supervised manner. This can be ascertained by keeping a check on each and every measure of the government and calling out any unconstitutional approach adopted by the Government, to ensure that the state of the exception does not become the state of normalcy.
History is filled with examples of states reserving wide powers to themselves during an emergency but not restoring these powers back when the crisis gets over. This is precisely why it is crucial to call out misuse of constitutional power even in such difficult times.
Therefore, I conclude this article by quoting the statement from WHO, which emphasised that in the midst of a pandemic, safeguarding human rights is more important than ever, and responses to this crisis must be founded on their protection.
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