- Legal bases and covid-19
In modern politics, liberty is the state of being free within society from oppressive restrictions imposed by authority on one’s way of life, behaviour, or political views. Sometimes liberty is differentiated from freedom by using the word “freedom” primarily, if not exclusively, to mean the ability to do as one wills and what one has the power to do; and using the word “liberty” to mean the absence of arbitrary restraints, taking into account the rights of all involved. In this sense, the exercise of liberty is subject to capability and limited by the rights of others.
Thus liberty entails the responsible use of freedom under the rule of law without depriving anyone else of their freedom. Freedom is more broad in that it represents a total lack of restraint or the unrestrained ability to fulfil one’s desires. In present the world is reeling from the covid-19 crisis and the vulnerable segments of our society are the most at risk. Today, however, we are facing an unprecedented situation: By your presence alone, you can threaten the wellbeing of another human being. .Although the Indian Constitution guarantees the right to life and liberty under Article 21. But never before have these fundamental rights been treated as antithetical to each other. But they are today. To preserve life, in its real, actual and most basic sense, we are ready to give up liberty. The more liberty we surrender, the higher the likelihood that we preserve the right to life.
As on account of covid-19, the world enters various phases of lockdowns, various analysts are trying to find a legal basis of the lockdowns and other legal measures undertaken by governments to fight the coronavirus. In every country, including India. There is confusion between “government advice” and measures that have the force of law. Some countries such as the United Kingdom (UK) and Singapore have hastily passed legislation to facilitate the collective surrender of the right to move freely and to enforce it through law enforcement authorities. However, despite the enactment in the UK, there have been many instances of confusion between legally enforceable restrictions, and “advice”, even among law enforcement officials. In India, two laws have been used to tackle the virus: The Epidemic Diseases Act, 1897, a two-page relic from our British colonial past that arms the State to put in place temporary measures, which the public needs to follow, to prevent the outbreak of diseases. Anyone disobeying the Epidemic Diseases Act can be penalised under the all-purpose, all-weather Section 188 of the Indian Penal Code, which prescribes a punishment of imprisonment for up to six months, or a fine up to 1,000, or both. The second is the Disaster Management Act, 2005. The pandemic is a “disaster” under the wide definition of the Act. However, in its design, the Act is structured to address natural calamities. To secure compliance of directives issued under this Act, broad unspecific provisions are relied upon. For instance, the guidelines issued on April 15 by the Home Ministry under the Act include a slew of directives such as wearing masks at workplaces.
We now seem to be part of a global consensus supporting the necessity to trade off one right to preserve another. In India, it is the poor that have disproportionately borne the burden of this. A trade implies receiving something in return for what you forfeit. Did the poor participate in a trade at all? The right to life has been interpreted by the Supreme Court to include the right to live with dignity. Yet, we failed to provide a life of dignity during lockdown to our most economically vulnerable people
Likewise, Brazil’s lockdown aimed at stopping the spread of the Covid-19 pandemic was imposed on March 21 in Niteroi, Brazil. Rio de Janeiro’s state government imposed restrictions to public transport. Bus lines and trains are closed, ferries and subway are running at a limited capacity. Apart from the prohibition on spitting, the violation of which entails a fine, specific punishments for other violations are not indicated. Any other violation would fall under Section 51 of the Act, which prescribes a maximum punishment of imprisonment for a year or a fine. This increases to two years, if the violation results in loss of lives or imminent danger. The notification issued by the home ministry also cites the trusty old Section 188. No existing law is designed to address the coronavirus pandemic. So repurposing outdated legislation, or using legislation not designed for this purpose, may have enabled swift measures, but at the same time, it has a one-size-fits-all approach. It would be ideal to have a law that tailors punishments proportionately to the behaviour it seeks to secure.
As the coronavirus pandemic continues, the UK government is introducing stricter limits on the public. Each looks at how restrictions on our freedom to move and assemble are evolving. The Covid-19 outbreak has killed more than 270,000 people, as its priorities include a legal obligation to take positive steps to protect people whose lives are at risk. It is not an “absolute” obligation, which means the state may not always be able to fulfil it due to limited resources. The government is taking steps to protect lives amid the coronavirus pandemic, including quarantine and isolation policies, which are interfering with our other rights. Among those affected are the right to liberty (Article 5), freedom of assembly (Article 11), and freedom of movement (Protocol 4 Article 2 of the ECHR – but sweeps across the globe. In the UK, the number of people to die in hospitals stood at about 33,000 by Friday afternoon). These rights must be balanced with the right to life. All three of these rights can be lawfully interfered with on the grounds of protecting public health. The right to liberty specifically enables lawful detention of people for the purpose of preventing the spread of an infectious disease. Provided that the government measures are necessary and proportionate to a legitimate aim (such as preventing the spread of a pandemic), interferences with the rights to liberty, assembly, and movement will comply with human rights.
We need to change the vocabulary to encourage honest reporting of symptoms and exposure. How do we do this when India presents more complex issues about social distancing than perhaps any other country in the world? People do not observe physical space or boundaries, nor do they often have the luxury of them. We are hardwired to not be solitary creatures. Will we be capable of the behavioural change required to keep us all safe after complete lockdown measures are lifted, or will the change in behaviour continue to be demanded and imposed on us by the law? We now seem to be part of a global consensus supporting the necessity to trade off one right to preserve another. In India, it is the poor that have disproportionately borne the burden of this. A trade implies receiving something in return for what you forfeit. Did the poor participate in a trade at all? The right to life has been interpreted by the Supreme Court to include the right to live with dignity. Yet, we failed to provide a life of dignity during lockdown to our most economically vulnerable people. This is a cross that the nation will carry forever.
The writer is head of the political science department, B.N. Mandal Unversity, Madhepura, Bihar, India. He can be reached at: [email protected]