Life, liberty and law in times of a lockdown | Opinion – analysis
The established discourse on rights says that the enjoyment of your rights ends where it affects the ability of another person to enjoy theirs. The idea is to ensure the enjoyment of rights by all, in equal measure. Today, however, we are facing an unprecedented situation: By your presence alone, you can threaten the well-being of another human being.
The 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 much of the world enters various phases of lockdowns, scholars 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.
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.
Then there are the faultlines that emerge when law enforcement and public health collide. When three residents of an affluent neighborhood in Delhi tested positive for Covid-19, the police circulated a WhatsApp message, stating that their preliminary inquiry raised a “doubt” about a guard working with the family, who was suspected of attending a religious gathering. The message stated that the guard was now “on the run”. The police registered an FIR against him. A week later, it turned out that the guard tested negative for Covid-19. We see the word “suspect” used for people afflicted with symptoms of the disease. This is an epidemic, not a bank robbery. Yet, as we rely on law enforcement authorities to grapple with a difficult public health situation, we expect them to shift gears.
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.
Shyel Trehan is a graduate of the National Law School of India University, Bangalore and Columbia Law School. She practices as a counsel in the Supreme Court of India and the Delhi High Court.
The views expressed are personal