Is lockdown a curtailment of our right to freedom? by Avlin at Lexcliq

Freedom is that state of being, where one is under no hindrance to express his/her thoughts, feelings, or to do his/her deeds. Thus, in a state of freedom, the human mind has unlimited bounds in expressing its own magnanimity. Freedom as a state of being is synonymous with positive faculties of mind like joyousness or happiness. In this way, under the state of freedom the human mind, body, or soul is unhindered by any barrier or shackles. The other meaning of freedom is that state where one is free to move or do one’s daily chores in an unrestricted way or without any barriers. Therefore, it would not be an exaggeration to state that, when there is freedom there is happiness, happiness, and happiness all around.

  • Freedom of Movement

Article 19(1)(d) of the Indian Constitution confers every citizen the right to move freely throughout the territory of India which is further supplemented by the “right to life and personal liberty” clause in Article 21.

  • Restrictions imposed on freedom of movement are reasonable

This can be better understood in the light of Judicial pronouncement in the case of Kharak Singh v. the State of U.P. where Justice Subbarao gave the definition of freedom of movement in a free country i.e. freedom of movement is comprehensive enough to include that a citizen may do whatever he likes, meet people of his own choices, speak to whomsoever he wants without any fear subject of course to the law of social control.

The lockdown imposed by the Government has instituted mandatory social distancing measures for the entire population, including the suspension of mass gatherings, quarantine measures, physical distancing, closure of non-essential businesses, and public spaces.

Migrant Workers: Under the Migrant Labour Act all migrant labourers are to be registered and if the experience is anything to go by, not even 10% of them are actually registered. Most of these workers are daily wage workers working in various industries such as construction work, brick kilns, etc.

The March 24, 2020 lockdown may have come as a bolt from the blue for the people but for the Central Government, one assumes it was a planned action. Much before this date, the World Health Organisation (WHO) had declared Covid-19 a pandemic. Flights had been stopped, the virus had spread within India, the circus of clapping from balconies had begun and some of the states had already effected lockdowns.

  • Impact on Migrant Workers

These restrictions are especially challenging for migrant workers who have been hardest hit by this measure. As when the Prime Minister announced the lockdown giving notice of mere four hours, sparking an exodus, millions of migrants desperately began to flee to reach their hometowns as the future seemed blurred and the fear of getting no work and food in the lockdown plagued their minds. The major highways were filled with men, women, and children, carrying their belongings.

  • The ‘Triadic Ethical Framework’ of the Constitution

When the right to privacy was declared a fundamental right, the historic dissent of Justice HR Khanna in ADM Jabalpur v. Shivkant Shukla was resurrected in eloquent terms by the Supreme Court. This, to recall, meant that fundamental rights cannot be suspended even in conditions of emergency. How have we forgotten that? The jurisprudence of this public health emergency must centre on calling the state to account on behalf of the poorest, most disentitled citizens. It is only if the courts and law are seen to be just in the reliefs they order that we can move forward. This is an extraordinary time and there is a need to understand the vulnerability of the working poor and to recall constitutional jurisprudence triggered by the Vishakha case. This will help us situate rights claims within a larger constitutional mandate to eliminate hostile environments generally on all grounds of dispossession and disentitlement not limited to gender and workplace.

  • The problem with the Covid-19 pandemic has been posed as an Article 21 issue:

The right to life, personal liberty, livelihood and dignity. We could consider a different constitutional route. This connects back to the question of balancing state interests with citizens’ rights. By now, the question is not limited to public health. The manner in which this pandemic has been handled is a sign of the place of “we the people” in the imagination of this national government. We need to look at ways of reimagining our place with Dr Ambedkar and his ideas of constitutionalism at the centre. To explore this I suggest a different route — Part IV of the Constitution – the Directive Principles of State Policy – as an anchor for state action.

The state is under obligation to minimise inequalities – in income, status, facilities and opportunities amongst individuals and amongst groups residing in different areas or engaged in different vocations.

While Kerala has been a front-runner in this matter, a cursory glance at the orders passed by state governments does point to a tremendous effort to scramble resources together to remedy the suffering unleashed by the sudden lockdown.

The Directive Principles of State Policy are a guide to governments. In finding our way through this crisis, these principles are ‘fundamental in the governance of the country (Article 37). In its striving for a social order in which justice, social, economic and political, shall inform all the institutions of the national life, one focused on promoting the welfare of the people, it is the Directives that provide the constitutional precepts. In particular, the state is under obligation to minimise inequalities – in income, status, facilities and opportunities amongst individuals and amongst groups residing in different areas or engaged in different vocations (Article 38).

Observing that equality (including and beyond Article 21) is a necessary condition for achievement of justice’, Justice Sudarshan Reddy sets out the expansive scope of inter-reading and justiciability of the Preamble-Fundamental Rights-Directive Principles.

The ambit and sweep of our egalitarian ideal inhere within itself is the necessity of inter-generational equity.

  • COVID-19 pandemic and derogation to human rights

Human Rights Courts will certainly be overwhelmed by applications in the aftermaths of the COVID-19 crisis. There are few doubts that this health crisis is an emergency threatening the life of the nation. If states have some discretion to determine the emergency, international human rights courts will scrutinize the necessity of the measures adopted to face it by applying the principle of proportionality. States must pay particular attention to vulnerable populations in order to ensure they are not disproportionally elected. In their scrutiny, international courts would rely on different indicia to determine if, at the time they were adopted, less severe measures could have achieved the same results. The duration of those measures will be considered. In this regard, we already observed some loosening of self-confinement after a few weeks, which might call for the adoption of other proportionate but more adapted measures. In certain cases, applicants might claim a violation of the prohibition of torture, inhuman, and degrading treatment, which applies in particular in the context of detention. International human rights conventions converge to characterize this right as non- derogable, which should presumably lead to the responsibility of the state. Beyond the current management of this emergency, this crisis shows the fragility of health systems, urging governments to review their strategies and to (re)invest massively in the healthcare sector.

Supreme Court and COVID related issues

Since March, 2020 a large number of individuals and organisations have approached the Supreme Court concerning the impact of COVID-19. Many of the Petitions, such as the prayer to declare a financial emergency, are frivolous. Some others have prayers requiring high levels of medical or other expertise, which the Supreme Court does not have, cannot be gone into.

On the other hand, a number of issues have been raised in the Supreme Court which it could have and should have entertained but failed to do so. The basic approach of the Supreme Court has been to either say that the Government is doing very good work and therefore the Court should not interfere or to say that these are matters concerning the policy that cannot be interfered with.

Essentially the Supreme Court has been highly deferential towards whatever the Central Government says, especially through the Solicitor General; and when pushed, the court will at the most request the Central Government to consider the issue raised in a Petition. No timeline is given nor any guidance as to what are the factors to be taken into account while considering the issue. No questions are asked and no concerns expressed; the Petition dies a natural death.

  • Conclusion

The COVID-19 pandemic has brought with it the implementation of laws that we generally aren’t subject to or used to. These laws may become tools for the government for curbing speech and expression during this crisis. To prevent that and to ensure that our right to speak and express ourselves is upheld in these trying times, the only way forward is to ensure the proper harmonisation of the principle of free speech and expression guaranteed under Article 19(1)(a), the reasonable restrictions encapsulated in Article 19(2), and the Doctrine of Proportionality that has become a legal standard for protection of civil liberties and rights of individuals.

 

 

 

 

 

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