COMBATING COVID-19: Need for a Rights-Based Approach

-by Gunjan Shrivastav & Jay Bhaskar Sharma

Coronavirus will go, but the kind of world it will leave behind will be a very different one than what it has been. The way in which COVID-19 has brought the world to a standstill is a first of its kind and a horrendous experience for humanity. Most of the developed countries in the world are struggling with saving their citizens despite having the best medical facilities. In the midst of this crisis, India has far greater challenges to face with its poor medical infrastructure, lack of advanced technology and a huge population unaccustomed to social distancing. This article seeks to explain the impact of nationwide lockdown through a right-based perspective and analyse the state actions through a jurisprudential lens.

It was a mere suggestion first and an order later, wash your hands and keep your distance. Both these actions seem very simple but we might have failed to consider millions of people who lack access to water to drink and space to live. On March 24, 2020, the Prime Minister of India announced a 21-days national lockdown which has extended further beyond the stipulated period. This was even a greater problem as it is also something out of the reach of many without their own shelter. A plethora of migrant workers left for their home towns as the PM announced the lockdown, defeating the very purpose of the measure. It might have been unprecedented for the government too; however, the State cannot do away with the liability of infringing the rights of these people guaranteed under Articles 14 and 21 of the Constitution.

Need for Rights-Based Approach:

Firstly, the right to equality was infringed when the state shut down all the establishments and workspaces along with a travel ban. People were asked to “work from home” but it disproportionately affected those workers whose job is impossible from home. It is established in Indian jurisprudence that violation of the right to equality is determined by looking at the effect of the State action and not by its intent. The aforementioned disability can be attributed directly to the socio-economic difference between classes of people. In other words, people whose jobs can be covered under “work from home” are generally in a higher income cadre; whereas for the workers of the same company, it might be impossible to work from home. Therefore, there has been a disproportionate impact on one stratum of the population, even more on migrant workers from different regions and the government has an obligation to reduce the harm that its action has caused. Though it can be said that the situation is unprecedented and the government took the decision to lockdown only to protect the people. However, the State being the parens patriae shall ensure that the harm caused to the people, especially the poor be minimalized.

Secondly, the right to life of people was infringed. A petition was filed in the Supreme Court for ensuring payment of wages to migrant workers in whichever sector they were employed. Upon hearing this issue, the CJI stated that “why wages are required when meals are being provided by the government?” This fact is not disputed here that the government certainly took various measures for helping the poor with no income, such as transferring money to their account and providing free food/ration etc. Despite this, a large number of people did not have access to government aid. This might be possible due to various reasons such as non-availability of information regarding the whereabouts of people and other technical glitches. However, the State should ensure that the governmental aid reaches everyone despite there not being any accountability framework. We think that there is a need for both the Court and the government to change their need-based approach to a rights-based approach, for the reasons stated above.

The larger problem that needs to be addressed is that this adverse impact on the poor in the country will continue to increase even when the lockdown is over. It can be explained using a simple example, for instance, a cloth merchant had 10 workers in his showroom. Now, during the lockdown, he is not getting any revenue but as per the Ministry of Home Affairs’ order, he has to pay full salary to his workers. Later when the lockdown is over, the economy would already be in an abyss and that employer, without substantial savings. Similarly, every other person would be in the same position which directly entails fewer sales of clothes. This will make the employer incapable of employing his prior workforce in its full capacity and he will be forced to fire some of them. The concern of the government policy should be the employment of those potential jobs that are going to be lost.

The aforementioned illustration precisely describes the long-term effects of the State action and the measures that the government needs to take. This is because ultimately these are the consequences of State action and the State is liable to the people under a rights-based approach.

Jurisprudential Analysis of State Action:

The outbreak of coronavirus has also raised several questions of public health and the measures adopted by the government to tackle the health crisis. The government invoked the Epidemic Disease Act, 1897 [hereinafter ‘the Act’] and the Disaster Management Act, 2005. The Acts gave unlimited discretionary power to the states to come up with regulations and guidelines to tackle the spread of COVID-19. However, the Epidemic Disease Act is an archaic law that provides a very broad framework and does not provide any comprehensive legal framework that allows resolving public health issues. The authors argue that a legal positivist approach to the statute fails to address pandemic not only in terms of curbing the spread of the virus but also the way it reinforces inequality in the Indian Society.

The Epidemic Disease Act, 1897 was enacted to stop the spread of the bubonic plague that devastated life in Bombay in 1896, forcing people to migrate out of the city. However, since then the Epidemic Act has been invoked by state governments whenever there has been an outbreak of a disease in a city. However, in the present scenario, the Epidemic Diseases Act is not an appropriate framework and invoking it is problematic because the terms of the act are not clear enough to regulate this health crisis. For instance, the act does not provide any explanation or definition of dangerous epidemic disease as to what exactly is covered within the ambit of dangerous epidemic disease; whether it is based on the number of people affected, or the potential of the disease to spread or the lack of proper antidote or vaccination for the same. In such a situation, adopting a legal positivist approach to the act by the government to justify its actions is extremely problematic.

Looking at the Act and the existing social-economic conditions from H.L.A Hart’s approach to Law and Moral principles, it is clear that there exists a problem of ‘open texture’ within the act, as the words used in the statute are not clear enough to address the situation. In such a scenario there exists a penumbral situation and it becomes imperative to look beyond the existing law and at a broader narrative in order to know how the act has been reinforcing inequality in society. Accordingly, state actions should not only focus on curbing the spread of disease but should also do it in a manner where any particular section of the society does not have to bear the cost for the rest.

Analysing the Act from the perspective of Lon Fuller’s Approach to law and morality, it is clear that the Act gives excessive discretionary power to the State without providing for adequate procedural safeguards, thereby violating the principles of inner morality. The Act confers a wide power on the central and the state governments without any accountability framework. Section 2 of the Act allows the state government to prescribe special measures and formulate regulations if it thinks that the ordinary provisions of the laws are insufficient and inappropriate for the purpose. It violates the principle of generality and provides arbitrary power to the State, as the regulations framed by the state can vary from inspecting persons travelling by railways, segregating people in hospitals or any other measure which the government might consider appropriate for preventing the disease from getting spread.

Moreover, Section 3 of the Act provides penalty for disobedience of any regulation or order made under the Act and provides punishment under Section 188 of the Indian Penal Code, 1860. Section 188 and 195 of the CrPC prescribe that for a court to take cognizance of an offence, an FIR is insufficient and written complaint should be made to the magistrate by the public officer. This gives a free hand to public authorities as they can punish the offender by beating them brutally and simply do away with the requirement of writing the complaint. Section 4 of the Act completely absolves the actions of the officers under the discretions of the Act.

This highlights how the state can simply abuse the existing legal framework if there are no adequate procedural safeguards to keep a check on the State’s action. It proves Fuller’s point that if a legal system is bent on achieving an evil or unfair outcome, it can simply do it with a legal positivist approach and therefore it is important that the procedures embodied in a legal system are consistent with the moral principles. Thus, it clearly shows that the Epidemic Disease Act is void of procedural safeguards, confers excessive powers on officials and insufficient to effectively resolve the pandemic. A legal positivist approach to the statute cannot do justice to the people in this pandemic.

Conclusion:

The current situation of pandemic clearly brings to light the socio-economic inequality that exists in the society and the way the State authorities are responding to it only reinforces the inequality and widens the gap between the rich and the poor. Although it might not be possible to amend the existing legislation or to draft a new law at this point of time, the State authorities can definitely come up with regulations such as the formation of Public Health Boards, Grievance Redressal Mechanisms, which will not only make the state accountable for its action but also look at the pandemic from a rights-based perspective where all the casualties will not be faced by a particular group of the society.

The views are personal.

Image Courtesy:  Al Jazeera.

ABOUT THE AUTHOR

Gunjan Shrivastav and Jay Bhaskar Sharma are second year law undergraduates at National Law School of India University (NLSIU), Bengaluru.

 

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