Intern, Legal Angles Patna
The recent Corona Virus (COVID 19) has turned out into a pandemic situation . All the activities of the nation is struck down due to the pandemic . The present article will deal with the legal issues that arises when disease like this creates a mass destruction to the whole of the nation.
India is facing humanity biggest crisis due to the COVID 19 turned out into a pandemic situation. On the midnight of March 24, the Union government invoked the National Disaster Management Act imposing a nationwide “lockdown” in the struggle against the coronavirus pandemic . At this point , a number of state governments had already invoked the Epidemic Disease Act ,1897 to impose a full restriction on the movement of the people . A “nationwide curfew” was imposed lasting for 21 days.
The imposition of nationwide curfew raise a set of question, involving the fundamental rights of the people. There can be a little doubt about that the curfew imposed adversely affects the livelihoods of vast numbers of people especially daily wage workers. . A nation wide curfew , therefore affects the most vulnerable segment of society, witnessed during the exodus of migrant from the cities .
CORONA VIRUS&SOCIO ECONOMIC RIGHTS:
A PIL was filed in the Supreme Court that the State ensure “payment of minimum wages to migrant workers . The main purpose to file the PIL was that because of nationwide 21 day lockdown declared by the government under National Disaster Management Act, migrant workers had effectively been deprived of their right to livelihood under Article 21 of the Constitution. Indeed there are two core constitutional rights that have been affected by the lockdown, when it comes to the migrant workers. The first is the right to equality . The effect of lockdown with the shutting of the establishments and physical workspaces and bans of the transportation is mostly felt by the workers who job makes “work from home ’’ impossible .Consequently , a nationwide lockdown has a disproportionate impact upon the livelihood of one set of the people. In Article 14, equality before law there exist a positive obligation upon the government to mitigate the disproportionate impact that has been caused by its decision to enforce lockdown. The second and more obvious right is Article 21 Right to life that includes the right to livelihood. Not all the workers have access to the government provided meals . However the more serious issue is the loss of livelihood caused to the migrant workers .The loss of livelihood and income also directly impacts the ability to pay rent , and to secure accommodation. According to the equality clauses of the Constitution , placing a disproportionate burden upon one set of people creates a constitutional problem that the state must address. Nobody is asking the Court to supervise the pandemic . While the task of dealing with the pandemic is undoubtebly the job of central government and the state government but the invocation of the NDMA and the EDA have enabled the government to bypass the parliamentary oversight. , specific decisions taken by the government in the course of pandemic policu are exercises of the state power, and where State power infringes upon constitutionally guaranteed right, that is when judicial review comes to the frame . Yes consequently the judiciary have a responsibility to closely scrutinize the actions of the state subject to the judicial review, and ensure that it is compliment with the constitutional standards. The place where migrant workers collect their wages are all chimerical , given the transport shut down and the rules of social distancing consequently, it was the government obligation to ensure payment at a place where the migrants were quarantined or had been stopped while travelling back to the their home and the villages . this is a core issue of the enforcement of Article 21 rights, because infringement of Article 21 in this case is direct result of the State action.
The normative counter insurgency against COVID19 is on the accumulated wisdom of legisprudence. The revival of powers conferred by a 123 year old Indian Epidemic Act ,1897 is combined by the DMA. The sections 188( disobedience to order duly promulgated by the public servant) Section 269(negligent act likely to spread infection of disease dangerous to life) Section270 (malignant act likely to spread infection of disease dangerous to life ) and section 144 of the Criminal Procedure Act which enable the executive to issue orders by taking extreme prohibitive actions that impinge variously on social and public life. The essential commodities act , 1955, helps to combat Covid 19! It enabled the Union government on March 13 , 2020 to declare masks and hand sanitizer as essential commodities. This law vast potential to control production , supply and distribution and availability at fair prices is once again on the economy and the nation.( Prevention , Control and Management of Epidemics , Bio terrorism and Disasters)Bill of 2017 seem to have guided much of the anti Covid 19 law and action policy today. The pandemic the argument goes, is an existential threat and paramount needs to save lives takes precedence over all the other interests.
The most important question to discuss is how the justice is functioning in the COVID 19 situation ? The Supreme Court has confronted the question by invoking the powers of ARTICLE 142 and providing guidelines for court functioning . The open platform for digital and medical technologies is striking . The SC has earlier decided that it would only convene benches to hear “ extremely urgent matters . Wide exercise of suo motu jurisdiction is followed.
Covid 19 raises a issue of powers of the nudge function. Social action litigation in India developed a art of the nudge function. Nudge is said to work independently and rationally . Or it can be considered as a mode of governance with some normitivity . Performance of the police brutality and the acts of sadism in dealing with the citizen behavior during the lockdown have marred the vaunted achievements of the lockdown regime.
Questions have been raised concerning acts of the deprivation of dignity and health in the treatment of migrant . and the scope of violence by civil society actors , be it imminent food riots or domestic violence against the women and these were considered not the important matters and are not listed because of Covid19 related contagion . These are foundationally whole illegal amounting to “ judicial suspension of Article 21 .
Today we live in the midst of a grave of public health crisis. There is a little doubt that the government is best placed to tackle the COVID 19 pandemic . Thus from the Perspective of Fundamental Rights, what is relevant here is the fact that the government has effectively invoked extraordinary powers and there is no doubt that a nationwide lockdown is extraordinary , even though it has been done through an executive decree .