Pranjal Sharma | 15th July 2020 | Symbiosis Law School, Hyderabad
Lockdown through the Eyes of The Common Man: A Constitutional Enquiry
The onset of the havoc brought in by the ongoing pandemic struck the biggest democracy and second most populous country of the world on January 30th, 2020 in the southern state of Kerala. The nomenclature of the virus, i.e. SARS-CoV-2 or COVID-19 (severe acute respiratory syndrome coronavirus 2), could be traced to the earlier similar pandemics caused due to SARS-CoV and MERS-CoV in 2002 and 2012 respectively. With an infection rate of 1.7, the virus has infected around 4.5 million people worldwide and killed around half a million in the past 4 months itself. As an immediate response to the pandemic, the Indian government invoked the Epidemic Diseases Act, 1897 to implement the nationwide ‘lockdown’, i.e. essentially shutting down all educational, commercial, and governmental establishments, cancelling large scale events, including competitive exams, along with an absolute prohibition on the movement of people.
The outbreak of COVID-19 was brought into the light of the world community on December 31st, 2019 after China informed the World Health Organisation (WHO) about a cluster of highly infectious pneumonia-like disease in the city of Wuhan. Within the following three months when the world was still trying to wrap its head around the virus, the number of cases rose exponentially (13-fold increase) making Dr Tedros Adhanom Ghebreyesus (Chief of the World Health Organisation) declare it a global pandemic on March 11th, 2020. The announcement followed with the generally advisory urging all governments worldwide to take ‘urgent and aggressive action’ in this regard.
The Indian government applied its set of first preventive measures during the last week of January by beginning thermal screening of passengers coming from China. By February, the screening was extended to passengers coming from Thailand, Singapore, Hong Kong, Japan and South Korea. On March 17th, 2020, an advisory was released by the government seeking the states to implement the strategy of social distancing. On March 22nd,2020, PM Narendra Modi ordered a nationwide 14-hour public curfew, calling it ‘Janata Curfew’. This was followed by the implementation of the first lockdown or ‘lockdown 1.0’ starting March 24th, 2020 that extended for 21 days, curtailing the movement of the entire 1.3 billion people (apart from the bare essentials). Post the 21-days period, two subsequent lockdowns were announced allowing minimal movement of people in areas with low incidence of cases.
In the light of the entire country moving towards the lockdown 4.0 from May 18th, 2020, it is pertinent to launch an enquiry into the critical constitutional questions that arise as a result of the policy decisions being taken by the government to deal with this pandemic. The direct or incidental impact of the pandemic as well as the ‘lockdown’ over certain sections of the populace (especially the economically and socially weaker sections such migrant labourers, daily wage workers, self-employed people, contractual workers, tenants etc.) has brought out ghastly and disheartening plight of suffering, shared regularly via images that circulate the print and the electronic media across the country. The pandemic or the preventive measures that have been or need to be taken have raised certain fundamental and core constitutional rights issues surrounding Articles 14 and 21 of the Indian Constitution, which deal with right to equality and right to livelihood respectively.
The main idea of equality enshrined under Article 14 of the Constitution revolves around the concept of no direct segregation (discrimination) of any sort between people belonging to different groups or classes. The major issue surrounding this topic is that even if a law that is neutral on its face and does not single out any group or individual nonetheless can have a disproportionate/discriminatory impact on certain groups and people (i.e., discrimination). The current lockdown situation appears to be neutral on its face as it is equally imposed on all class and sections of the society; but the impact cast by the same has far-reaching, deep and discriminatory consequences as can be observed.
Article 21 of the Indian Constitution that talks about right to life and personal liberty, not only involves judicial activism but also judicial creativity. Life being a very subjective term, the Indian Constitution protects ‘life’ not only by the meaning of mere animal-like existence but through the inclusion of several other factors essential to the maintenance of life such as the right to healthcare and majorly right to livelihood as further illustrated in the case of Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nandkarni. In this regard there also exists the landmark judgment of Olga Tellis v. Bombay Municipal Corporation which described how the periphery of ‘right to life’ is wide and far-reaching and not a single pronged one, and how “an equally important facet of the right to life is the right to livelihood because no person can live without the means of livelihood.”
A holistic understanding of both the aforementioned provisions in consonance with the socio-economic realities in the country brings out the verity of Indian populace where some people have to pay a heavier price and work much harder for maintaining their life and securing the lives of their respective families, and those who are doing so, are already economically and socially marginalized (mainly the migrant labourers, daily wage workers, street vendors etc.).
Speaking of the nationwide lockdown and its ill-effects, what is highly noticeable is the large-scale violation of the basic fundamental rights of certain selected groups of people, hence highlighting the need and obligations of the state authorities for introducing various policies for mitigating the infringement of these fundamental rights. The duty of the State to secure the rights of all the citizens doesn’t emanate merely as social or moral responsibility but also forms an intrinsic part of its constitutional duty towards the populace. In this respect, the unfortunate instances of labourers walking hundreds of kilometres across the states, or people dying of starvation and lack of basic amenities and livelihood clearly forces us to rethink the entire paradigm of human existence vis-à-vis constitutional responsibility of a State.
In circumstances like these, when the fundamental rights of people are thrown out of the window and side-tracked in most of the policy decisions, the most effective recourse is to approach the judiciary of the state. However, the judicial arms is at times ill-equipped in terms of resources and scientific know-how to deal with health emergencies of this magnitude. This is no way relieves the Courts of its responsibility of maintaining the fundamental rights and overall law and order in the society. The judiciary is still accountable to ensure the efficacy of mitigation measures undertaken by the governments, if not directly direct them to undertake one specific course of action.
It is the judiciary that acts as the legal beam-balance for the country and in exceptional situations where the positive rights of people are being abrogated, such as the present one, it is the duty of the state governments to come up with various remedial structures providing for appropriate and legitimate amounts of compensation and the availability of the adequate amount of comprehensive relief package which is legally enforceable in nature. The responsibility and the duty of the judiciary of the country is to regulate that such compensation is legitimate, appropriate and satisfactory enough with respect to the minimum core socio-economic conditions that are necessary for the citizens of the country to live a dignified life and enjoy core essential fundamental rights enshrined in the Constitution.
The Central Government introduced the nationwide lockdown on 24th March 2020 to follow the policy of social distancing, allowing movement outside the residence only for bare essential subjects. This measure included the shutting down of major public places, institutions as well as corporations for avoiding overcrowding and also launched other platforms such as online courses and ‘work-from-home’ allowing people to be able to keep up with their work without being hindered by their physical absence from their respective workspaces. However, like every coin has two sides, even these measures have a certain fallout. The population of our country consists of two economically divided classes, one being people belonging to the higher economic strata and the other belonging to the labourer or lower economic status. Hence, the preference towards policy of online work or work-from-home although proves to be an effective platform for those who are into the corporate and the service sectors, it has no positive effect on daily wage earners or the labour class whatsoever. This policy is highly based on the working of the corporate sectors only leaving the menial wage earners haywire as to how to earn a living during these tough times to maintain their lives. It is not an alien reality that higher economic status or nature of job allows much greater flexibility of working from home rather than the ones in the lower strata.
To provide support to the ongoing situation, the Central Government came up with the State Disaster Response Fund (SDRF) for providing food and shelter to the migrant laborers who are being hit hard by the lockdown. The fund has a total budget of INR 29,000 crores. Apart from these policies, several other provisions have been made such as hiking up of the wages under the MGNREGA plan and provision of one-time ex-gratia amounts in the accounts of around 3 crore senior citizens, disabled people and widows and people below the poverty line. But the findings of the Stranded Workers’ Action Network (SWAN) under their study of ‘32 Days and Counting: COVID-19 Lockdown, Migrant Workers, and the Inadequacy of Welfare Measures in India’, showed that out of the 17,000 workers who had contacted them, only 6% were paid their full salary and more than 99% self-employed workers did not receive payments, including painters, welders, electricians. Most of them happen to be contractually employed and send their revenue home. The lockdown affected them the most when it was announced initially because they were unable to come back home overnight, in such a situation all that one can expect at the least is a basic and clean accommodation facility which was not properly provided to them. Hence as observed, the policies and provisions of the government didn’t really have an all-over positive effect on the highly economically stratified population of the country.
Now in these difficult times, when what the country requires is a united front to face the pandemic situation together, the Indian states have been posing greater difficulties by the means of inter-state rivalry in terms of hiding data, fabricating data, lack of conducting regular tests, irregular economic policies such as revoking labour legislations, and worst of the worst inter-political disputes that is posing a greater threat to the country than the loss of the population at the hands of the pandemic. The lockdown thereby has started seeming more like an experiment that is being conducted by the government and the political parties, diminishing the citizens of the countries to the status of mere lab-rats.
The lockdown was and still is being managed by a multitude of more than 3,000 orders placed in bureaucrats, commanding both citizens as well as bureaucrats and threatening them with criminal prosecution, but never offering a rationale for decision-making. Orders may force citizens to comply with the state lockdown rules, but they cannot force citizens to open up to them. Firms and workers face an uncertain future, and they need the confidence to be able to make rational choices. This can only come from a completely different type of communication that can possibly replace such orders with a credible road map for the economic revival of the nation. The inability of the governments to be able to provide such a specialised yet holistic guide to the country even after being in the lockdown for several weeks is what the greatest barrier to recovery is.
In this entire conundrum, the Hon’ble Supreme Court of India has relinquished its responsibility of interfering in most of the matters related to the pandemic. At this risk of venturing into the domain of the Executive by policy-making or judicial-overreach, the Judiciary must expediently take note of certain measures taken by the governments that are in gross violation of the basic constitutional morals and values. By the invocation of the Natural Disasters Management Act, the Centre has given birth to a number of broad clauses allowing the government a lot of liberty to act on its own. However, the checks and balances on such an Act can only be ensured by swift and timely judicial intervention. This clearly illustrates the high need and responsibility of the judiciary to be active and at times pro-active in terms of their constitutional validity and application. The discourse surrounding the contours of judicial overreach vis-à-vis judicial activism would seem fruitful only if we are left with a dignified citizenry at the end of this unfortunate dark tunnel.
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According to Merriam Webster dictionary a pandemic isan outbreak of a disease that occurs over a wide geographic area and affects an exceptionally high proportion of the population.
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 1983 AIR 109, 1983 SCR (1) 828
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