COVID 19 AND HUMAN RIGHTS ON INDIAN LAW

COVID-19 and human rights on Indian law 

On Tuesday, 24 March 2020, Prime Minister Narendra Modi declared on national television that India would be under lockdown for twenty-one days in order to prevent the spread of the global pandemic COVID-19 (Coronavirus). The decision of the Prime Minister was made two days after he had advised the citizens of India to follow the Janta Curfew, which was a voluntary curfew. The Janta Curfew acted to prepare Indian citizens for the current lockdown.

The Ministry of Home Affairs published the official notification and invoked the lockdown under Section 6 of the Disaster Management Act. The Home Secretary issued guidelines for this lockdown under his powers in Section 10 of the Disaster Management Act, as the Chairman of the National Executive Committee constituted under Section 8 of the Act.

It is surprising to see that the terms ‘lockdown’ and ‘curfew’ have not been defined under Indian law but are still being used to curtail the fundamental right of movement enshrined under Article 19(1) of the Indian Constitution. This cannot be termed invalid as this right is subject to reasonable restrictions under Article 19(2). The closest understanding of ‘lockdown’ can be construed from the Epidemic Diseases Act (EDA). Section 2 and 2A of the EDA give power to the State and Central governments to take necessary steps in the situation of an epidemic to control its outbreak, even if the steps are not mentioned in any law practice or theory in the country.

Looking to the the Disaster Management Act, which was used to enforce the lockdown, Section 2(d) reads: “‘Disaster means a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man-made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area.” This section is not meant to deal with epidemics or diseases of any kind but causes such as, but not limited to, tsunamis and earthquakes. However, the Ministry of Home Affairs declared the spread of COVID-19 as a “notified disaster”, thus bringing into play Section 2(d) of the Disaster Management Act. This enabled the State Governments to use a larger part of the State Disaster Response Fund (SDRF) to combat the spread of the virus.

It is interesting to see that when the lockdown was announced, its application was not sourced from any law. It is not explicitly provided anywhere that the government has the power to declare something of this nature. It looks as if the policy had first been declared, and then the later the government considered which law applied. Declaring the COVID-19 outbreak as a “notified disaster” is a first-of-its-kind measure taken to increase the scope of government powers that can be used in order to make quick administrative decisions to fight this disease. It is important for the government to back its policies and decisions with legal provisions as it validates those actions.

In furtherance of the declaration of a nationwide lockdown, the Ministry of Home Affairs published guidelines using Section 10(2)(l) of the Disaster Management Act on the measures State and Central Governments must take during this twenty-one day period. The guidelines established that all types of transport services (air, train, and road travel) will not be operational during this period. Commercial and private establishments shall remain closed, except for ration shops, banks, ATMs, media services, and telecommunication companies. The guidelines also said under paragraph 17 that any person who violates these containment measures will be liable under Sections 51 to 60 (Offenses and Penalties) of the Disaster Management Act, and under Section 188 of the Indian Penal Code which creates the punishment for disobedience to order duly promulgated by a public servant.

In the case of Paschim Banga Khet Mazdoor Samity V State of West Bengal, the Supreme Court held that the government is obligated to provide adequate health facilities to the citizens of India. But the current status of medical facilities (including, but not limited to, testing kits, hospitals, and the number of people trained to combat something of this nature) suggests that India needs something more than a Disaster Management Act or an Epidemic Diseases Act that only grants powers to the government to take steps they deem necessary. India requires a methodological and comprehensive framework to combat a pandemic of this nature.

We are all in  this together

APRIL 2020 

COVID-19 and India’s Addiction to Colonial-Era Laws

India lockdown raises concerns about legitamacy of colonial era laws that have been used to administer emergencies.

We live in the age of the emergency state. The nature of globalization and its security challenges — whether in the form of terrorism or global pandemics — requires the state to remain constantly on the alert. Thus, instead of the state having limited access to emergency powers under exceptional circumstances, we are increasingly witnessing “emergencies” as an extended social reality.

Moreover, these emergencies have substantially modified the social contract, with the state having taken on powers that would hitherto have been considered unthinkable with little or no opposition or discussion. Witness the complete lockdown in India and most countries across the world, including the substantial shuttering down of any judicial recourse during this period. In the Indian case, this new social reality raises concerns about the unbridled exercise of executive power and the legitimacy of colonial-era laws that have been used to administer emergencies.

On April 1, to deal with the COVID-19 outbreak, the District Administration in Panchkula, Punjab, invoked the Punjab Villages and Small Towns Act, 1918 (PVSTA). This Act allows the deputy commissioner to direct any able-bodied adult male inhabitant in the designated area to perform patrolling duties. If the adult male refuses to perform these duties, he can be penalized with a fine. On the flip side, the public’s noncompliance with the male patrol appointee’s directions bears the same consequences as disobeying a police officer under the Indian Penal Code. People are thus effectively patrolled by private citizens who, unlike public servants, may not be held accountable for abuses of power.

In 2015, this law was used to sanction night patrols in Ludhiana and Jalandhar to stop incidents of desecration of the Guru Granth Sahib. It was used in 2018 in Kaithal “to check burning of paddy straw” and again this year “to curb incidents of theft and robberies.” All these cases appear to be flagrant breaches of fundamental rights to movement, privacy, and liberty.

India’s health emergency does warrant special measures and the desire to “seal all the entry and exit points of villages” may be necessary. But can the fundamental rights granted by the Indian Constitution be so easily abrogated by a deputy commissioner using powers designed to benefit an oppressive colonial regime? To appreciate these concerns fully, it is important to return to the historical context within which the PVSTA was formed.

In the early 20th century, pre-Partition Punjab was one of the epicenters of the Indian National Movement, and consequently a hotbed of the British Raj’s repression. Following the latter’s drastic clampdown on agrarian unrest in the 1910s, political activism was once again on the uptick. For instance, popular rebellions such as the Jat Paltan (1907) — which emerged in response to unpopular changes to land laws like the Punjab Land Alienation Act (1900) and the Colonization Bill (1906) — were mercilessly thwarted by the British Raj.

In 1914, 337 Sikhs, 27 Muslims, and 12 Hindus living in British India boarded the Japanese vessel Komagata Maru in order to emigrate to Canada. Only a few years back though, the Canadian government had amended its immigration laws to block the entry of Asian immigrants. So had officials in Singapore and Hong Kong. These people then set sail back to India. However, the British Government in India did not want to facilitate their re-entry either. Therefore, it passed the Ingress into India Ordinance. This entitled the governor-general of each province to pass orders restricting the movement of emigrants, imposing conditions on their stay in British India, and prohibiting them from entering specified areas. Any contravention of these orders attracted a one-year jail term.

When the Komagata Maru landed in Calcutta, all the passengers were kept as prisoners. They were to be returned to Punjab and interned eventually. Exasperated by torture and ill-treatment, the Punjabi detainees broke out in revolt at the Budge Budge bridge in Calcutta. The British Army resorted to force in response. Official reports put the number of deaths somewhere in the 20s, but the actual numbers were believed to be far more. It was a massacre.

HUMAN RIGHTS

�They put people at the centre and 

produce better outcomes

Human rights are key in shaping the pandemic 

response, both for the public health 

emergency and the broader impact on people

lives and livelihoods. Human rights put people 

centre-stage. Responses that are shaped by 

and respect human rights result in better 

outcomes in beating the pandemic, ensuring 

healthcare for everyone and preserving human 

dignity. But they also focus our attention on 

who is suffering most, why, and what can be 

done about it. They prepare the ground now for

emerging from this crisis with more equitable �and sustainable societies, development and 

peace. 

Why are human rights so important to the COVID-19 response

The world is facing an unprecedented crisis. At

its core is a global public health emergency on 

a scale not seen for a century, requiring a 

global response with far-reaching consequences for our economic,social and political lives.The priority is to save lives.

In view of the exceptional situation and to 

preserve life, countries have no choice but to 

adopt extraordinary measures. Extensive 

lockdowns, adopted to slow transmission of the virus, restrict by necessity freedom of 

movement and, in the process, freedom to 

enjoy many other human rights. Such measures can inadvertently affect people’s livelihoods and security, their access to health care (not only for COVID-19), to food, water and sanitation, work, education – as well as to leisure. Measures need to be taken to mitigate any such unintended consequences. The United Nations has available a powerful set of tools, in the form of human rights, that 

equip States and whole societies to respond to threats and crises in a way that puts people at 

the centre. Observing the crisis and its impact 

through a human rights lens puts a focus on 

how it is affecting people on the ground, 

particularly the most vulnerable among us,and 

what can be done about it now, and in the long 

term. Although this paper presents 

recommendations, it is worth underlining that 

human rights are obligations which States must abide by.Guaranteeing human rights for everyone poses a challenge for every country around the world to a differing degree. The public health crisis is fast becoming an economic and social crisis and a protection and human rights crisis rolled into one. In some, ongoing crises, especially 

armed confict, put human rights and other 

international legal protections under extra 

pressure. The COVID-19 crisis has exacerbated the vulnerability of the least protected in society. It is highlighting deep economic and social inequalities and inadequate health and social protection systems that require urgent attention as part of the public health response. Women and men, children, youth and older persons, refugees and migrants, the poor, people with disabilities, persons in 

Human rights are critical –  for the response and the recovery

2    COVID-19 AND HUMAN RIGHTS: WE ARE ALL IN THIS 

TOGETHER�COVID-19 AND HUMAN RIGHTS: WE ARE ALL IN THIS 

TOGETHER    3    

detention, minorities, LGBTI people, among 

others, are all being affected differently. We 

have an obligation to ensure everyone is 

protected and included in the response to this 

crisis.�

State authorities are having to deploy maximum resources to combat the spread of the disease and protect lives. Decisions are being made at speed and, even though well-intended, some can inadvertently have adverse consequences. 

Responses must be proportionate to the 

pandemic to preserve the trust that needs to exist between people and their government, especially during a crisis. Human rights guide States on how to exercise their power so that it is used for the beneft of the people and not to do harm. In the current crisis, human rights can help States to recalibrate their response measures to maximize their effectiveness in combating the disease and minimise the negative consequences. The centrality of protection, which underpins the response in humanitarian settings, ensures that we collectively preserve our common humanity and dignity.Human rights law recognizes that national emergencies may require limits to be placed on the exercise of certain human rights. The scale and severity of COVID-19 reaches a level where restrictions are justifed on public health grounds. Nothing in this paper seeks to tie the hands of States in shaping an effective response to the pandemic. Rather it aims to 

signal to States possible pitfalls in the response to the crisis and to suggest ways in which attention to human rights can shape better responses. 

The aim is threefold: to strengthen the 

effectiveness of the response to the 

immediate global health threat; mitigate the 

broader impact of the crisis on people’s lives; 

and avoid creating new or exacerbating 

existing problems. All three elements will 

position us to build back better for everyone.

Against a backdrop of rising ethnonationalism, 

populism, authoritarianism and pushback 

against human rights in some countries, the 

crisis can provide a pretext to adopt repressive measures for purposes unrelated to the 

pandemic. The instability and fear that the 

pandemic engenders is exacerbating existing 

human rights concerns, such as discrimination against certain groups, hate speech, 

xenophobia, attacks and forced returns of 

refugees and asylum-seekers, mistreatment of 

migrants, and sexual and gender-based 

violence, as well as limited access to sexual 

and reproductive health and rights. �

This is not a time to neglect human rights; it is 

a time when, more than ever, human rights are 

needed to navigate this crisis in a way that will 

allow us, as soon as possible, to focus again on achieving equitablesustainable development and sustaining peace. In his recent Call to Action for Human Rights to put human rights at the heart of UN actions, including in times of crisis, the Secretary-General underlined that:

our shared human condition and 

values must be a source of unity, not 

division. We must give people hope 

and a vision of what the future can 

hold. The human rights system helps 

us to meet the challenges, 

opportunities and needs of the 21st 

century; to reconstruct relations 

between people and leaders; and to 

achieve the global stability, solidarity, 

pluralism and inclusion on which we 

all depend. It points to the ways in 

which we can transform hope into 

concrete action with real impact on people’s lives. It must never be a 

pretext for power or politics; it is above 

both .

This paper aims to translate this Call into concrete action to assist with the response to the pandemic. It presents six key messages that must be central to an effective response to the COVID-19 pandemic.

1 The Highest Aspiration: A Call to Action for Human Rights

SPOTLIGHT: HUMAN RIGHTS AT THE 

FRONTLINE IN THE FIGHT AGAINST COVID-19

Three rights are at the frontline in the  current 

pandemic: 

Right to life and duty to protect life

We are combating COVID-19 to protect the lives of all human beings. Invoking the right to life reminds us that all States have a duty to protect human life, including by addressing the general conditions in society that give rise to direct threats to life. States are making extraordinary efforts to do this, and it must remain the primary focus.

The right to health and access  to health care

The right to health is inherent to the right to life. COVID-19 is testing to the limit States’ ability to protect the right to health. Every human being is entitled to the enjoyment of the highest attainable standard of health conducive to living a life in dignity.

 Everyone, regardless of their social or economic status, should have access to the health care they need. 

Historic underinvestment in health systems has weakened the ability to respond to this 

pandemic as well as provide other essential 

health services. COVID-19 is showing that 

universal health coverage (UHC) must become 

an imperative. Those States with strong and 

resilient healthcare systems are better 

equipped to respond to crises. Health-care 

systems all around the world are being 

stretched, with some at risk of collapse. UHC 

promotes strong and resilient health systems, 

reaching those who are vulnerable and 

promoting pandemic preparedness and 

prevention. SDG 3 includes a target of 

achieving UHC.Universal, affordable health-care systems assist with combating the pandemic by ensuring access for everyone, without discrimination, to basic measures that contain the spread of the virus. This includes testing, specialist care .