Fundamental rights in times of covid

Siddhant Gupta

Novel Coronavirus (also popularly known as COVID-19) and declared pandemic by World Health Organization, (WHO) since last more than two months has affected almost every country in the world resulting in fatalities amounting to more than 3.5 lakhs as of now and further severely affecting thousands of others and India is no exception. While the pandemic has brought the world to a standstill and kept the majority of the population at home, yet a large section of society most particularly migrant laborers working in unorganized sector in the country have been rendered jobless and at the same time left with very little resources for them to sustain and survive this pandemic. On 26.05.2020, the Hon’ble Supreme Court in a case titled “IN RE: Problems and Miseries of Migrant Labourers” finally took the matter in its own hands by taking suo motu cognizance of the problems and miseries of migrant laborers who have been stranded in different parts of the country by directing the Government of India as well as all State Governments and Union Territories to immediately make adequate transport arrangement, food and shelter thereof for them. As far as their problems are concerned, it is the duty of respective governments to address their issues and to provide them relief and rehabilitation but most importantly it is quintessential to comprehend the existing statutory as well as legislative mechanisms which have resulted in the form of nation- wide lockdown and the need for re-evaluation of such measures.
The Union Government through its department, Ministry of Home Affairs (MHA) issued an order dated 24.03.2020 wherein and whereunder, in exercise of the powers conferred under Section 6(2)(i) read with 10(2)(i) of the Disaster Management Act, 2005 issued nationwide lockdown and directives which were implemented throughout the whole of India and on the same day, a circular was issued by Press Information Bureau citing “lack of uniformity” between the states as a reason of implementing such directives. On a bare perusal of the statutory provisions enshrined in the Act, it nowhere grants powers of such wide amplitude to the Union to lay down guidelines which virtually put the fundamental rights of citizens in suspended animation. Now as per the constitutional scheme of things, by virtue of List II in the Seventh Schedule to the Constitution, subjects such as Public Entry 1 (Public Order) and Entry 6 (Health) are within the exclusive domain of the states. So, in terms of the aforesaid legal position, these directives issued by the Union Government can at best be termed as “Executive Directions” which are advisory/directory and not binding/mandatory in nature. Moreover, the definition of “Disaster” as is provided in NDMA Act includes a catastrophe, mishap, calamity or a sudden grave occurrence and falls short of including a pandemic of this nature. If one sees the legislative intent behind the enactment of this act, it was ratified immediately after ‘Tsunami’ struck the shores of Southern India in December, 2004. Furthermore, Entry 29 (Prevention of the extension from one State to another of infectious or contagious diseases or pests affecting men, animals or plants) of List III (Concurrent List), on which laws can be made by both Union as well as State, also comes into the fore and to counter challenge it, the Doctrine of Repugnancy can be invoked so as to remove the inconsistency between any law made by Union as well as State which, after such inconsistency is removed, as is there in this case, eventually shifts in favor of the Union Government. But here is the paradox- this Doctrine only applies to laws that are enacted by Parliament or laws made by legislature of a State and not on executive directions which are being brought out by the Union Government from time to time.
The present lockdown has unfurled its wings beyond the boundaries of India and almost the whole world is witnessing self-quarantine or isolation in one form or another which are being implemented by their respective governments. However, with the passage of time, the world, including India has eased out restrictions during lockdown in a phased manner and we are slowly but surely moving towards normalcy. But as far as restrictions are concerned, as in distinction with regard as to which business or commercial establishments will remain open, the bifurcation of districts into red, green and orange zone respectively has caused grave impact on the fundamental rights of the citizens, more specifically with respect to right of livelihood enshrined as an extended interpretation of Article 21, right to free movement under Article 19 and equality before law of all sections under Article 14. This narrative recently became the subject matter of a dispute in a US city of Wisconsin before their Supreme Court (since all the states therein have a separate Supreme Court) in a matter titled ‘Wisconsin Legislature v. Secretary-Designee Andrea Palm and Ors.’ A group of legislators of Wisconsin moved a petition before their Supreme Court wherein they alleged that the executive has overreached its authority by issuing an order during COVID-19 under which guidelines have been invoked to arbitrarily confine people to their homes, restricting their travelling and closing all businesses that ‘the executive’ think are not essential, thus violating the quintessential doctrine of Separation of Powers. The Supreme Court of Wisconsin, in a majority decision, struck down the aforementioned executive order by terming the order as unlawful, invalid and unenforceable and directed the legislature (petitioners herein) to frame rules to address the pandemic keeping in mind the welfare of the Wisconsin public at large.
Therefore, constructively, taking cue from the decision of the Supreme Court of Wisconsin, it is imperative that India should frame a broad set of rules/guidelines or revisit the legislative mechanisms that are in place to deal with such a pandemic in near future. In addition to taking such steps, as far as the present situation is concerned, an attempt should be made to harmoniously balance the fundamental rights of the citizens of this country, and the executive overreach of the Union as well as State Governments so that the whole nation can emerge from such type of pandemic as stronger as ever and adequately prepare themselves with necessary safeguards of any such contagion for future times to come as well.
(The author is an advocate)