Justice Khanna in his decision, referred to the constitution as “the vehicle of the life of a nation”. It incorporates individuals’ right to equality, freedom and personal liberty in the form of the golden triangle, i.e., Article 14, 19 and 21. The security of this golden triangle seems to have been breached by the COVID-19 pandemic. The 21-days lockdown by the Indian government is one of the corollaries which has put the constitutional rights of Indian citizens under the radar.
DOMINATION OF DISCRIMINATION OVER EQUALITY
The equality before law and equal protection of law as enshrined under Article 14 as well as prohibition of discrimination under Article 15 are at stake because of lockdown and communalism that has been developed among the people of India which divided ‘WE’ in the preamble into several communities and religions. There have been instances which clearly shows that nobody is losing any sleep over equality, as a pregnant woman who is ‘muslim’, was refused treatment at a government hospital in Rajasthan’s Bharatpur district because of her religion due towhich her child died.To defend this, it is contended that the acts of Tablighi Jamaat are most hazardous to the entire country! But you cannot punish each and every person of the community for the acts of small bunch of people. Communalists even differentiated between the players playing for the same country, as the cricketer Irfan Pathan’s social media accounts were bombarded with nasty, islamophobic comments when he wrote, “It was good until ppl started busting crackers” on his twitter timeline. But, when similar kind of messages were conveyed by other cricketers like Gautam Gambhir, Rohit Sharma, etc. no such comments were landed on their tweets.
Here comes an event where racism is at its peak. A 24 years old Sikkim woman, who was suffering from intense abdominal pain, was refused to enter in the emergency ward by KPC hospital and MR Bangur hospital in Kolkata. She was directed elsewhere to undergo screening for COVID-19 and got treated at a third hospital. Soon after reaching home, she got a call from police so that they can keep her in isolation ward. She tried to explain that she had no symptoms of the virus, but no one heard, and she was kept there for whole night with the other COVID-19 suspects. She was treated like a dog and the doctor who checked her, questioned her, “Are you from China?”
In yet another case, nine employees of a dental insurance company, who are from Nagaland, were taken by police acting on a complaint, that they are from China. People spat tobacco on north-eastern people and even shouted ‘corona’ after looking at them.The transgender community too is fighting for their survival during lockdown as many hate posters stating “if you talk to transgenders, you will get infected by coronavirus” or,‘dial 100’ if transgenders approach a shop, are surfaced in many part of Hyderabad.
On March 16, 2020, a group of UN human rights experts said that “emergency declarations based on the COVID-19 outbreak should not be used as a basis to target particular groups, minorities, or individuals. It should not function as a cover for repressive action under the guise of protecting health and should not be used simply to quash dissent.”
Many doctors, nurses and health workersare victims of discrimination and inequality, as they were asked and even forced to vacate their temporary homes by their landlords because the landlords were afraid that they get susceptible to coronavirus infection. As a result, many doctors are now stranded on roads. The airline employees are not far from experiencing such discrimination, especially those who were on repatriation flights to bring back Indian citizens from virus hit areas.
The corporate world also gets caught in the battle of inequality due to the policies framed in relation to Corporate Social Responsibility (hereinafter referred to as CSR) during the fight against pandemic. According to an office memorandum, issued by Ministry of Corporate Affairs, the donations made to PM-CARES fund will be eligible as CSR expenditure under clause (viii) of Schedule VII. According to FAQ 2, ‘Chief Minister’s Relief Fund’ or ‘State Relief Fund for COVID-19’ is not included in Schedule VII of the Companies Act, 2013, therefore, any contribution to such funds shall not qualify as admissible CSR expenditure. On the other hand, FAQ 3 states that contributions made to State Disaster Management Authority will form part of CSR expenditure. However, the contradiction and incongruity in law was reflected in FAQ 4.It states that funds spent on COVID-19 related activities will fall within the ambit of Schedule VII. Clause (i) & (ix) include activities such as, eradicating hunger, poverty and malnutrition, promoting health care, disaster management, including relief, rehabilitation and reconstruction activities, which would constitute CSR related activities even by the state, as the parameters are inclusive and not exhaustive. It is also pertinent to note that sub-section 5 of section 135 clearly states that every CSR related expenditure should give primary preference to local area around which it operates.All this depicts, that the companies donating in Chief Minister’s Relief Fund or State Relief Fund were discriminated against those companies who contributed to PM-CARES fund. Therefore, excluding state funds from Schedule VII to fight against COVID-19 exposed the Act for violation of Article 14.
DID LOCKDOWN CURTAILED THE FREEDOM UNDER ARTICLE 19?
As shutting virtually all businesses to maintain social distancing might violate Article 19 (1) (g). The restrictions on movement of people from one state to another for containing the virus may infringe Article 19 (1) (d).Interestingly, when Prime Minister announced 21-days lockdown with the backing of an orderunder the Disaster Management Act, the order does not suo moto restricts the movement of persons as well as the closure of shops, establishments etc. Hence, dismantling the freedom under Article 19.
RIGHT TO LIFE ON VENTILATOR DURING LOCKDOWN-
With the Covid-19 pandemic holding the world hostage, many deaths reported around the world and detention centres are becoming ideal for the breeding of the virus. According to a report, the centre could hold around forty people in one room, consequently, only two feet is allotted to each person. The living conditions were very poor as it includes overcrowding, stale food, unhygienic quarters, poor sanitation and inadequate medical facilities that should be provided in a proper manner as tailored under Article 21 of Indian constitution. However, to safeguard the rights of detainees Supreme Court ordered the release of the prisoners/ detainees who have been in detention for more than two years along with bond by two sureties of 5,000 rupees each.
Many poor and vulnerable people got hurt due to the lockdown. They do not have adequate food, shelter and other basic amenities. With more than 80% of India’s workforce employed in informal sector, one-third is working as casual labourers which due to shutdown of rail & bus services and disruption in the supply of essential goods, left stranded. Thousands of homeless people are in the need of protection from government. Shelter for a human being, is not mere protection of his life and limb. Right to shelter includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities.State government across the country should set up shelter and community kitchen for those most at need and take measures to ensure physical distancing. Police actions against violators have resulted in abuse of people in need. As observed bySupreme Court, right to social security and protection to family is an integral part of right to life, therefore the government should pay the pending wages to the poor families of workers who worked under the Mahatma Gandhi National Rural Employment Guarantee Act as well as protect the agriculture income offarmers in the season of harvest and save their produce. To protect their rights, government has announced a relief package of 1.7 trillion rupees (US$22.5 billion) to provide free food and cash transfers to the poor and vulnerable populations, and health insurance for healthcare workers.
The right to food of 40 million children from poor family got affected due to lockdown. Not only them, child labour and street children, like, children in cities living on streets, under-flyovers, or in narrow lanes and by-lanes do not have food and are not even allowed to fetch water or firewood. They receive food once in 2-3 days that too after walking or searching for long. According to United Nations Committee on Economic, Social and Cultural Rights, the right to health provides that health facilities, goods, and services should be available in adequate quantity and should be of good quality. Authorities should recognize that malnourishment and untreated illness will exacerbate problems. Therefore, they should take actions to curb the problems and not the rights.
As per a PIL filed before the hon’ble Supreme Court, lack of 4G connectivity for internet in Jammu and Kashmir and the subsequent restrictions imposed on internet speed connectivity, the education sector has been impacted severely. The Speed Restriction Orders have been passed without complying with law. Further, the Speed Restriction Orders fail the test of proportionality.Right to education is a fundamental right under Article 21-A, therefore, disturbance in receiving education would result in infringement of such right. Such rights should be protected by the government and it should act wisely, not arbitrarily during lockdown.
The restriction on rights provided under the golden triangle should be in accordance with law. According to Siracusa principle adopted by United Nations Economic and Social Councilin 1984 states that the restrictions should be carried out in accordance with law and the least intrusive and restrictive steps should be taken to reach the objective. However, the government and administration has failed to get the grip on the infringement of rights and imposed restriction which are not in accordance with law. For instance, the order for 21-days lockdown has been issued under section 10(2)(l) of Disaster Management Act, 2005 by National Executive Committee, whereas, the provision states that National Executive Committee is not empowered to issue directions to the individuals &to shut businesses but, it can only issue directions to state and central governmental departments relating to the measures taken during disaster. Article 14, 19 and 21 were violated at each and every step of the lockdown and therefore, it is the primary responsibility of the government to circumspect and protect these rights, as many such infringement cases are taking place across the country.
About the author
Mr. Priyam Goyal is currently pursuing his B.B.A. LL. B (Hons.) from a prestigious law college, Indore Institute of Law. He is an ardent speaker and debater. He won various Model United Nation Conferences all over India. He also won the award of Best Memorial in the National Trial Advocacy Competition. He hopes to serve as a successful Attorney and looks forward to accumulating more expertise in public relations. His hard work and do it yourself attitude make him a unique personality.