Fundamental Rights Amidst a Pandemic!

By – Anju Mourya

As of the Indian constitution, India has 6 fundamental rights. These rights are:

1. Right to equality (Article 14-18)

2. Right to Freedom (Article 19-22)

3. Right against Exploitation (Article 23-24)

4. Right to Freedom of Religion (Article 25- 28)

6. Right to Constitutional Remedies (Article 32-35).

5. Cultural and Educational Rights (Article 29-30), and

But do you know what happens to all these rights during a nationwide emergency?

And what about during pandemics like the one we are facing right now?

So, in the case of the former situation, if the country imposes a nationwide emergency, then as of the Indian constitution the central government has all the rights to take these fundamental rights to their control completely to protect the citizens and regulate the spread of any misinformation in the country. One such situation India has faced is during the times of Indira Gandhi regime in the year 1975-1977, when all the fundamental rights were forcibly controlled by the central government.

Well, even the latter situation might be considered as an emergency like situation. Until the pandemic gets worse and uncontrollable the center cannot take the fundamental rights in their hands (at least not in a democratic country).

In the case of COVID-19 where the whole world is under a lockdown which has resulted in a recession of economy all over the world and the unprivileged are forced to starve, the fundamental rights get violated more than any time ever.

Today we are living amid a grave public health crisis. There is little doubt that the government is best placed to tackle the COVID-19 pandemic. Doing so requires it to take extraordinary actions. This is why the efforts of the Central and State governments to maintain a nationwide lockdown, to enforce norms of physical distancing and to restrict movement, have been met with support.

Here are some of the actions taken by the government that might result in the violation of fundamental rights:

Arogya setu app: Using the epidemic disease act of 1897 that scarcely accords the state the power to publicize its citizen’s medical information, the government has created a list of people infected by coronavirus which helps the users of the app to trace the movement of these infected individuals. It has been done so that the person who comes in contact with the carrier can quarantine herself. Although the efficacy of applications such as these has been questioned by early adopters, such as Singapore, the Union government doesn’t seem to take this point into notice.

Well, this app might help to protect the non-carriers and would help them to take necessary precautions to distance themselves from the carriers, but what about the carriers? Isn’t it an invasion of their private life? 

While on May 27 the government made available the source code for the Android version of the app on GitHub (a software development platform for the delvoplers to review). But the makers still can’t be held responsible for any harm caused “as the liability clauses in the app remains that nobody still has a liable. The government has said it won’t be responsible for false negatives or false positives”. Moreover with no data law in place, any breach of data or unauthorised use by a third party will still have to be litigated in the courts with no other alternate recourse available.

The program also shares worrying parallels with the Aadhaar project in that its institution is not backed by legislation. Like Aadhaar it also increasingly seems that the application would be just used as an object of coercion.

There have already been reports of employees of both private and public institutions being compelled to download the application. Also, very much like Aadhaar, Aarogya Setu is framed as a necessary technological invasion into personal privacy, in a bid to achieve a larger social purpose. But without a statutory framework, and in the absence of a data protection law, the application’s reach is boundless. One shudders to think about how the huge tranches of personal data that it will collect will be deployed.

Migrant workers: “Article 21 of the Constitution guarantees life and personal liberty to all persons without any discrimination. It guarantees the right of persons to live with human dignity. Therein are included, all the aspects of life which go to make a person’s life meaningful, complete, and worth living.

According to the Centre for Monitoring Indian Economy (CMIE), an estimated 122 million people lost their jobs in April alone and three-quarters of these were small traders and wage laborers. Unemployment has led to starvation and as these unprivileged live in highly congested areas, practicing social distancing is an impossible task there.

As the lockdown kept extending and all the promises made by the government to provide help didn’t reach most of these people, they started migrating to their hometowns in the hope to get a better life, those who had some money left opted for trains to reach their homes and those who were left with nothing but disappointment took it to roads and started covering thousands of miles by walking.

While earlier government responses seemed to offer little or nothing, the government appears to have woken up somewhat to the unfolding human tragedy, announcing a ₹3,500 crore food support program for migrants recently. Exactly how the government will implement the program is not clear, obsessed as it is with establishing identity and registration when most migrants lack these documents.

Migrant trains are being run all over the nation which as of earlier speculations, the central government had promised to bear 85% and the state government 15% of the total fare and was supposed to send migrants to their native places in free of cost.

But in supreme court’s latest verdict, it came out clearly that the central government’s promise of bearing 85% of the fare was nothing but just a mare blabbering. The solicitor general, Tushar Mehta representing the central government confirmed this Infront of the appex court that there wasn’t any such provision in centre’s working list.

He said that, it is the host or the native states who are supposed to bear the whole price of the fare. Although supreme court has ordered centre to take all the necessary steps to help migrants reach their homes in free, but in reality nothing much that would directly benefit the migrants seems happening.

Probably this helplessness is the reason why we almost every day hear about many migrants being killed during the journey to their homes.

Domestic violence: Our constitution provides us the right to equality before the law under article 14-18. But how prevalent gender inequality is in our society, we all are well aware of it.

Well, during this lockdown where the victim is locked with their perpetrator, this inequality has reached an alarming stage.

Speaking of women and children, who have been deprived of their rights since always, while earlier they had the option to run away and make complaints to the authority, today have no other options except to struggle. The reports of the national commission for women (NCW) and child protection welfare organizations clearly show the rise in violence-related cases amidst the lockdown.

Freedom of speech and expression: India has obtained 142nd rank out of 180 countries in the press freedom index 2020, prepared by RSF (Reporters Sans Frontieres).

A statement released on 15th May 2020, by the International Press Institute (IPI) said the Modi government has “resorted to various tactics” to prevent independent media from criticizing it and reporting about the coronavirus pandemic.

The statement cites multiple cases of police registering cases against journalists in the last few weeks for their news reports.

IPI, in its statement, has taken cognizance of journalist Dhaval Patel being charged with sedition for writing an article for the face of the nation about Gujarat CM Vijay Rupani being possibly replaced by the BJP high command, due to criticism over the increasing number of coronavirus cases in the state.

The statement also takes note of a reporter from The Indian Express, Mahender Singh Manral, being summoned by the Delhi police on 10 May for a report stating that police investigations found the possibility of the audio clip of Tablighi Jamaat leader Maulana Saad being doctored.

The editor’s guild of India considered Patel and Manral case and has criticized the government for misusing laws against journalists.

The organizations also criticized the central government for their blatant attempt to stifle press freedom on 31 March urging the Supreme court to bar the media from publishing Covid-19 related news that hasn’t been confirmed by the government. The court refused to intervene but directed the media to “refer to and publish” the official version of the developments.

Conclusion

India is a democratic country and to get here our ancestors have given their lives therefore we now have to maintain that democratic nature. Violating fundamental rights, in the long run, would benefit no one it will only encourage international media to criticize our actions.

To be a developed nation, we all also need to work like them by giving our citizens their fundamental rights.