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Life, liberty and law in times of confinement – analysis


The established discourse on rights says that the enjoyment of your rights ends when it affects another person’s ability to enjoy yours. The idea is to guarantee the enjoyment of the rights of all, in equal measure. Today, however, we are faced with an unprecedented situation: only with its presence can it threaten the well-being of another human being.

The Constitution guarantees the right to life and liberty under article 21. But never before have these fundamental rights been treated as antithetical to each other. But they are today. To preserve life, in its real, current and most basic sense, we are ready to give up freedom. The more freedom we surrender, the greater the probability of preserving the right to life.

As much of the world enters various stages of blockages, academics are trying to find a legal basis for the blockages and other legal measures taken by governments to combat the coronavirus. In all countries, including India, there is confusion between “government councils” and measures that have the force of law. Some countries, such as the United Kingdom (United Kingdom) and Singapore, hastily passed legislation to facilitate collective waiver of the right to move freely and enforce it through law enforcement. However, despite the enactment in the UK, there have been many cases of confusion between legally enforceable restrictions and “advice”, including among law enforcement officials.

In India, two laws have been used to combat the virus: the Epidemic Diseases Act of 1897, a two-page relic of our British colonial past that arms the state to establish temporary measures, which the public must follow, to prevent the outbreak. of diseases. Anyone who disobeys the Epidemic Diseases Act can be penalized under Section 188 of the Indian Penal Code for all types of weather and all types of weather, which prescribes a prison sentence of up to six months, or a fine of up to ~ 1,000, or both.

The second is the Disaster Management Act, 2005. The pandemic is a “disaster” under the broad definition of the Act. However, in its design, the Act is structured to address natural calamities. To guarantee compliance with the directives issued under this Law, non-specific general provisions are used. For example, the guidelines issued on April 15 by the Home Office under the Act include a number of directives, such as wearing masks in the workplace.

In addition to the ban on spitting, the violation of which involves a fine, there are no specific penalties for other violations. Any other violation would fall under Section 51 of the Act, which prescribes a maximum prison sentence of one year or a fine. This increases to two years, if the violation results in loss of life or imminent danger. The notice issued by the Home Office also quotes the old and trustworthy Section 188.

No existing law is designed to address the coronavirus pandemic. Therefore, the reuse of outdated legislation, or the use of legislation not designed for this purpose, may have allowed quick action, but at the same time, it has a one-size-fits-all approach. It would be ideal to have a law that adapts punishment proportionally to the behavior it seeks to ensure.

Then there are the failures that arise when the police and public health collide. When three residents of a wealthy neighborhood in Delhi tested positive for Covid-19, the police circulated a WhatsApp message, claiming that their preliminary investigation raised “doubt” about a guard working with the family, suspected of attending a meeting. religious. The message said that the guard was now “on the run”. The police registered an FIR against him. A week later, the guard turned out to be negative for Covid-19. We see the word “suspicious” used for people affected by the symptoms of the disease. This is an epidemic, not a bank robbery. However, since we trust that the police authorities will face a difficult public health situation, we hope that they will change gears.

We need to change the vocabulary to encourage honest reports of symptoms and exposure. How do we do this when India presents more complex problems regarding social distancing than perhaps any other country in the world? People do not observe physical space or boundaries, nor do they often have the luxury of them. We are programmed not to be solitary creatures. Will we be capable of the behavior change required to keep us all safe after the full blocking measures are lifted, or will the behavior change continue to be required and enforced by law?

We now appear to be part of a global consensus that supports the need to exchange one right to preserve another. In India, it is the poor who have disproportionately borne the burden of this. An exchange involves receiving something in exchange for what you lose. Did the poor participate in a trade? The Supreme Court has interpreted that the right to life includes the right to live with dignity. However, we were unable to provide a dignified life during confinement to our most economically vulnerable people. This is a cross that the nation will carry forever.

Shyel Trehan graduated from the University of India National School of Law, Bangalore and Columbia Law School. She practices as a lawyer in the Supreme Court of India and the Delhi High Court.

The opinions expressed are personal.

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