Constitutionality of imposing a British-era law during coronavirus pandemic is legally fraught, for the most part

From a public health perspective, there is no arguing with the fact that a strategic lockdown in a health crisis like the coronavirus outbreak is both desirable and necessary

Ashish Goel April 10, 2020 13:03:11 IST
Constitutionality of imposing a British-era law during coronavirus pandemic is legally fraught, for the most part

From a public health perspective, there is no arguing with the fact that a strategic lockdown in a health crisis like the coronavirus outbreak is both desirable and necessary. But from a constitutional perspective, imposing a nationwide ban on all kinds of movement (and the repercussions that come along with it) is legally fraught.

The Epidemic Diseases Act, 1897 invoked by the state governments in India provides them with sweeping police powers to take all necessary measures in the event of a threat of an outbreak of a dangerous epidemic disease, which cannot be controlled by ordinary laws. It provides for segregation, in hospital or temporary accommodation, of persons suspected of being infected with any such disease.

The overly broad and vague 1897 Act was introduced in the British Raj-era when India did not have a Constitution with rights, promises and aspirations.

Any lockdown would self-evidently result in deprivation of the freedom of movement and other fundamental freedoms contained in the Constitution. For millions of migrant workers, who were left jobless and especially prone to starvation, the sudden lockdown immediately became a right to life and livelihood issue.

It is true that constitutional courts across nations tend to largely defer to government authorities and health experts and generally uphold pro-health government measures taken for public good, even at the cost of individual liberty. The position in India is no different: Fundamental rights are not absolute but are subject to narrowly drawn restrictions. And ordinarily, a law aimed at achieving a clearly delineated public health goal would likely be immune from a constitutional challenge.

But to save itself from such a challenge, the measure adopted to further the public health goal must necessarily be fair, proportionate and scientific in nature (note that the Kosovo constitutional court has struck down the government's decision to ban movement as a measure to tackle COVID-19 ). The 1897 Act, however, which notoriously comprises four-and-a-half sections, does not provide for any procedural safeguards, mechanisms in which powers can be exercised by implementing officers, protection of rights of those who are segregated, scientific rationale behind the restrictive measures, so on and so forth (nor do the regulations that have been recently issued under the Act).

The result is a negation of some of the core rights that our Constitution holds dear. For instance, in Bareilly, Uttar Pradesh, migrants returning homes were doused in bleach disinfectant used to sanitise buses. And in Badaun, a stick-wielding policeman is seen on camera making migrant workers — who were presumably walking back to their villages — to hop like frogs along a road with bags strapped on their bags.

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Representational image. AP

There are other videos of policemen toppling vegetable carts, assaulting medical professionals, chasing away public on the streets with batons, forcing closure of shops selling essential goods and otherwise seizing complete control of the streets.

If the objective of the lockdown is to decrease transmission, then is subjecting citizens to involuntary home confinement the least restrictive measure that the state governments could have adopted to achieve that purpose? Probably not. According to health experts, the virus is not airborne and is spread mainly through respiratory droplets, especially when people cough or sneeze. Since the virus spreads from person to person in close proximity, the World Health Organisation has recommended maintaining physical distance of at least one metre to decrease transmission.

In such a situation, one would understand the closure of non-essential shops and services, manufacturing operations, schools, offices, public transport etc to ensure that people do not come in close proximity with each other and for a sufficiently long time. Likewise, closure of religious and other gatherings is also understandable. But why are implementing officers who are patrolling the streets assuming that the right to movement itself has been suspended — seen only in an emergency?

The guidelines issued under the national disaster management law do not provide for restriction on movement of individuals (the issuance of overly broad guidelines by the Centre with little or no consultation with state governments itself lacks legitimacy but that is for another day). And the Regulations issued by governments in pursuance to the 1897 Act — Karnataka, Maharashtra, New Delhi, Tamil Nadu and West Bengal — do not seem to restrict movement of individuals. As already pointed out here, currently under the law, there is no "nationwide" lockdown as such: What is banned or legally prohibited is public gatherings.

The answer perhaps lies in Prime Minister Narendra Modi's televised address. The "stay at home for 21 days" diktat is being perceived by those implementing the lockdown on the ground level as coming from a rulebook, capable of being legally enforced on the ground. It is deeply troubling to see that the prime minister's guidance and advisories — well-intentioned as they are — have been taken as de facto legal status by those implementing the lockdown.

Health experts from around the world have showered praise on the government for being among the most decisive in tackling COVID-19 . Of course, no political party would lose public support for coming down hard on the novel coronavirus : In times of health crises as these, it is indeed tempting to concede with the narrow-minded notion that the doctrine of necessity knows no law.

But, in a constitutional democracy, the government is bound by the promises of the Constitution. Some of these promises are that of liberty, human dignity and privacy. While health emergencies, such as the COVID-19 crisis, may somewhat obscure the significance of these promises, it is imperative to build a rights-based narrative so that those whose rights are at stake can have their voices heard and question government action on the twin yardstick of prudence and legality.

One thing in common between several lockdown regulations is the compulsory isolation/quarantine of those infected with the virus or suspected to be infected. As noted above, the right to freedom of movement, like any other right, is no doubt qualified and clearly spelt out measures could be taken to protect public health and contain the spread of the virus. But from a constitutional law perspective, involuntary confinement is an extreme deprivation of liberty and must pass stringent constitutional tests to attain legitimacy.

This becomes all the more important given that those quarantined are being forced to live in harsh, unsanitary facilities. For instance, in the Bundelkhand region in Uttar Pradesh, workers are forced to live in government schools with no toilet arrangement or fans. The situation is the same for those quarantined in government schools in Malda district in West Bengal. One worker told The Times of India: "There are 125 people put up in the school and all of us are living together with little space. Social distancing or other safety measures are not being maintained due to space constraint. The entire purpose of keeping us in quarantine here stands defeated."

If the objective is to prevent mass exposure to a harmful virus or to prevent an infected patient (or someone suspected to be so infected) from intentionally causing harm to others, state governments must have clear and convincing scientific evidence that forced confinement is the only option available to it or is the least restrictive measure that could be taken to deal with the crisis.

Without a scientific assessment of the likelihood of future harm, it would be constitutionally impermissible for the state to confine infected persons merely on the presumption that the presence of an infection would make the public potentially susceptible to harm. The assessment ought to involve not just studying the nature of the disease and the potential chains and ease of transmission, but also the intention and the capacity of the infected person to control behaviour and avoid putting others at risk.

This is a challenging exercise, no doubt, but we must start thinking in that direction.

The author is a Supreme Court lawyer. He tweets @ashish_nujs

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