CONSTITUTIONAL CHALLENGES DURING COVID-19 IN INDIA

AUTHORS- Rutveek Jawalekar, Government Law College, Mumbai & Kareena Wadhwani, Indore Institute of Law.

1. Introduction

Covid-19 is spreading like fire not only in India, but whole of the world. Besides being a threat for the lives of people, this pandemic has posed many challenges for the Indian Legal System, and has deprived the citizens of their constitutional rights. On one hand, when the whole world is appreciating the Government of India for the announcement of lockdown earlier than other affected countries, these sudden steps have caused severe problems to a large fraction of Indian population. There are many questions that arise at this point regarding how to deal with these changes. Besides constitutional rights, human rights are look upon too. There are a number of changes in working of legal system of our country in this pandemic and many measures have been taken by the Honourable Supreme Court to ensure justice at this point of time.

2. Constitutional challenges during COVID-19

The biggest challenge concerning this situation is fundamental rights provided in Part 3 of Indian Constitution. Article 21[1] guarantees Right to life and Liberty that says “No person shall be deprived of his life or personal liberty except according to procedure established by law.” It does not just mean animal existence, but is multi- dimensional in nature, i.e. it can be interpreted through various judgments that includes Right to Health, Right to Food, Right to Privacy, Right to Livelihood, etc.

Three major rights that are Right to Health, Right to Food and Right to Life are seen to be disrupted at this point of time. These have been continuous efforts by the state to ensure the basic amenities, but despite these efforts there is a difficulty to enforce these rights. As per reports, the migrant workers heading back to their homes during this lockdown are struggling a lot get proper food and shelter. Shelters made for these workers are overcrowded making it difficult to exercise social distancing.

Besides this, the assurance of providing food to them is failed to some extent, and this completely violates the Supreme Court judgement of PUCL v. Union of India[2] that guaranteed Right to Food. Reports provide in Delhi, 1/3rd of ration shops had unavailability of food and in Jharkhand, seven lakh households could not avail benefit of Public Distribution System.

Moving further, when we talk about the concept of Right to Health that was guaranteed in Consumer Education & Research Centre (CERC) and others v. Union of India and ors.[3] Healthcare workers are concerned about shortage of PPE kits. The conditions may not be so severe in private hospitals, but the doctors and other workers in government hospitals are at huge risk. On the contrary, people need regular checkups like cancer patients, those suffering from thalassemia are unable to go to hospitals. Also the ones in quarantine centres are facing a scary condition as they are kept with those suffering from Covid-19.

One can’t form assemblies or be a part of them at this point of time that completely violates Article 19 (1)(b). People are not allowed to assemble together and protest if they don’t agree upon something with government. There is a restriction on movement of people, and they can’t go or travel to any part of India, causing infringement of other fundamental rights. Article 21-A providing right to free and compulsory education is taken away due to closure of educational institutions. The students are losing their right of getting efficient education and gaining knowledge at this point of time. Students are being promote without relevant examinations and making their basics weak.

As held in Justice K. Puttaswamy v. Union of India[4], Article 21 also includes right to privacy. There are many instances in which we can see them getting violated. There is a release of information about people in quarantine centres. This data includes their name, phone no. and residential address. Also the introduction of Aarogya Setu that tracks the movement of Covid-19 patients, and makes you aware if he/ she are near you can be considered as another example. These overlooking by government and failure in implementing these rights during such pandemic can be problematic.

3. Impact of COVID-19 on the Indian legal system

In terms of the number of registered Covid-19 cases India is witnessing a rapid increase in the number of confirmed Covid-19 cases. Keeping in mind the global outbreak of this virus and the growing number of cases, our judicial system has taken a few remarkable steps to control the spread of the virus within India. Almost all the tribunals have been partially shut to avoid a man to man interface. Many Courts have shut down the filing counters the office of the advocates. Also, the apex court is promoting visual hearings and e-filing to avoid the physical presence and the possibility of transmission of the virus.

Following are some of the measures taken by the Supreme Court of India:

With the powers enshrined in the constitution of India under the Articles 141 and 142, a three-judge bench comprising of Chief Justice S.A. Bobde, Justice L. Nageshwara Rao and Justice Surya Kant has extended the period of limitation for filing the appeals, petitions, suits and all other proceedings in courts and tribunals.

In other words, the period from 15th 2020 March till further orders will be excluded while calculating the limitation period.

· The court has made it clear that no case shall evidence be recorded without the mutual consent of both the parties by video conferencing.

· Also, the apex court has taken suo moto cognizance of a letter by SCBA suggesting various measures for use of technology for conducting hearings in the courts.

· The Supreme Court has allowed the increase in threshold for triggering insolvency to one crore.

· All the interim orders are extended till further orders.

All these efforts were appreciated in the beginning but are not enough for a vast democracy like India. There is a general feeling that the High Courts and especially the Supreme Court has let down the Constitution and the people of India.

There is no dispute that some of the petitions filed in the Supreme Court lacked any substance and have been dismissed. It has been evident in the past few months that the hardest hitting impact of the lockdown has been on migrant labourers, women, children, transgenders, sex workers, adivasis and other sections of the marginalized society. These all people constitute almost a whopping 70% of our population.[5] If the Courts are not in a position do any good for the jobless and starving subjects during this pandemic, the judiciary can hardly be said to be delivering justice. The judiciary has had its limitations, but this cannot be used as a justification to its total failure in handling the migrant labours, children and women’s situation that are dying of hunger. This rather displays a complete surrender of the Courts to the executive which can be regarded as the personal failure of the institution.

Last month, around 20 senior advocates had suggested that the Supreme Court was exhibiting symptoms of the emergency era mindset. Former Chief Justice Ranjan Gogoi strongly disagreed the view but, former A-G Mukul Rohatgi felt that the courts had not reacted when it should have.[6]

Questions Arising while Assessing the Performance of the Courts:

a. What is the obligation of the state concerning fundamental rights and directive principles at such difficult times?

b. Can the courts have stepped into the policy making, scientific and medical expertise arena for the government?

c. What should the Courts could have actually done procedurally to help the directly affected people like migrants, transgender etc.?

4. Violation of human rights during the pandemic

The Indian authorities need to urgently adopt measures to protect the country’s poorest and most vulnerable people if COVID-19 containment and relief measures prove inadequate, Human Rights Watch said. On March 24, 2020, the Prime Minister announced a three-week nationwide lockdown to contain the spread of Covid-19 which has affected the marginalized communities of the society owning to loss of livelihood, shelter, food, health etc. Lakhs of migrant workers are stranded with public transport at stand still. The closing of state borders has just added to the crisis for the migrant workers and supply of essential goods and services which has resulted in black marketing, artificial scarcity of goods. To add more, the police actions to punish the violaters have resulted in power abuses.

Moreover, In Uttar Pradesh, Delhi, Telangana, and Tamil Nadu, health workers and airline staff faced discrimination from their neighbours and landlords threatened to evict them, fearing they could be carriers of COVID-19. People who have been quarantined have also been stigmatized and threatened with eviction.[7] Police in several states, including Punjab, Rajasthan, Haryana, Uttar Pradesh, Maharashtra, and Andhra Pradesh have arbitrarily punished people or publicly shamed them, forcing them to hold posters saying “I am an enemy of society because I will not stay at home.”[8]

Following are other examples of violation of Human Rights

· The National Human Rights Commission has issued a notice to the Delhi state government and the Union Health Government regarding the difficulties faced by the people due to non-availability of beds in the hospitals. There are reports that the people are forced to sleep on the floor and no one is paying heed to the patients in the government hospitals.

· There have been instances where a patient is admitted in a government institute and a dead body of a patient has been placed besides him for hours.

· In one city of Maharashtra, an 86 year old patient’s body who passed away seven days ago was found in the hospitals washroom.

· Also, there has been massive delay in conducting the last rites of those who died during the pandemic.

5. Conclusion

The Supreme Court of India has provided protection to the people of India from all sorts of crisis but this public health crisis arising due to the pandemic is turning out to be a disaster on all fronts including the fundamental rights crisis. As the situation progresses, all the pillars of the nation including the executive, judiciary, media and the people need to hold on together to defeat the corona virus and the return for a new normal. New policies are needed to be drafted so that no one faces the deprivation of basic amenities in such a disastrous situation. Working for it holding the hands will make our country a better place to live not just for the elite classes, but also the poor and middle class households.

REFERENCES- [1] Article 21 of The Constitution of India, 1949. [2] Union for Civil Liberties (PUCL) and Anr. v. Union of India and Anr, SC 568, JT 1997 (1) SC 288, 1996 (9) SCALE 318, (1997) 1 SCC 301, 1996. [3] Consumer Education and Research Centre v. Union of India, 1995 AIR 922, 1995 SCC (3) 42. [4] Justice K.S. Puttaswamy and Anr. v. Union of India and Ors, WRIT PETITION (CIVIL) NO 494 OF 2012. [5] Covid-19 and The Indian Supreme Court, Bloomberg Quint, Mihir Desai [6] Times of India Conclave, School of law, Bennett University. [7] India: COVID-19 Lockdown Puts Poor at Risk, the Human Rights Watchdog [8] Ibid.