The novel coronavirus (COVID-19) is now known to every country, city, town, village and family. The pandemic is spreading like wildfire and the human race is fighting every second to defeat this invisible enemy. On the 12th of March, 2020, the WHO declared COVID-19 a pandemic and India on 22nd March, 2020, initiated the Janta Curfew following which the Prime Minister announced a nationwide lockdown of 21 days taking effect on 25th March, 2020. On 14th April, 2020, it was extended until the 3rd of May 2020, while assuring Indians that essential services would continue, thereby imposing reasonable restrictions on the majority of fundamental rights. This is the first time in the history of India where a disease is testing the fabric of the Constitution itself.
According to German Philosopher Jurgen Habermas “Human rights is a concept that is not only of a moral origin but also juridical by nature, meaning thereby, that they are positive and coercive law which supports justiciable subjective right claims through their structure.” He says that these rights are to be respected by the Government and its officials and the authorities should restrain themselves from taking any arbitrary actions no matter the circumstance. The effectiveness of the government’s protection of basic rights is a perfect yardstick.
Part III of the Constitution of India enshrines within itself Fundamental Rights, which cannot be abrogated at any cost (except in a time of emergency), and through the lens of the lockdown, public discourse was projected to surround two major rights: these are the Right to Life and Right to Equality. These two rights are natural rights that are inherent in nature and no individual can be deprived of these rights. According to Article 4 of International Covenant on Civil and Political Rights, 1966, (hereinafter referred to as ‘ICCPR’) States in an emergency can suspend some of these rights but Article 4(2) states some of the rights mentioned in Article 6 that cannot be derogated from. Article 6 of the ICCPR talks about the right to life of every citizen. Article 21 of the Constitution of India talks about the right to life and personal liberty but these are not limited to that only, various judicial pronouncements have interpreted the Article to embody in itself the Right to Health and the Right to food. The Supreme Court in Chameli Singh and Ors. v. State of UP and Ors. broadened the definition of right to life and said:
“Right to live guaranteed in any civilized society implies the right to food, water, decent environment, education, medical care and shelter These are basic human rights known to any civilized society. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention or under the Constitution of India cannot be exercised without these basic human rights.”
Recently the Office of the Human Rights Commissioner issued guidelines on the 9th of April, 2020 suggesting Covid-19 responses to be taken by every state. It was pointed out in the Guidelines that the virus is likely to create inequalities and so states should take actions to ensure that human rights of its citizens are not affected. The guidelines addressed the plight of marginalized sections of the Society such as Migrant workers’, Disabled people, LGBTQ and said it will be a challenge for governments to take effective measures. Under this lockdown, we (well-off Indians) are quarantined indoors, work from home and get groceries delivered and enjoy all the possible rights. But outside our windows, it’s a different journey for the marginalized sections of our society.
A journey of hundreds and thousands of Indian migrant workers from different states lumbering for miles and miles on highways has been portrayed in newspapers and television screens for days. Witnessing this journey is very heart breaking. People can be seen with luggage roosted on their heads, babies in arms, and elderly family members struggling alongside. Migrants are fleeing to their native villages. The concept of social distancing is prevailing in the organized sector by engaging in work from home, but for unorganized workers who are paid on a daily basis amidst this lockdown are not able to fulfil their needs, social distancing is difficult to implement. As a consequence of which the nation witnessed the horrifying incident of migrant workers gathering in Delhi. Over 80 percent of the Indian population is employed in the Unorganized Sector and a majority of them are casual laborers.
The on-going lockdown and migration of labor class, once again has shown the face of police brutality. News channels are flooding with videos where police are brutally beating these people for violating the norms of lockdown, even if they was out to procure essential products. The government has invoked Epidemic Diseases Act, 1897, which gives it power to take all those actions that are necessary to prevent the spread of the disease and safeguard the interest of its citizens. Section 3 of the Act provides penalty for disobedience of any regulation or order made under the Act and provides punishment under Section 188 of the Indian Penal Code, 1860. Section 188 of Indian Penal Code and 195 Criminal Procedure Code, 1973 prescribe that for a court to take cognizance of an offence, a First Information Report (FIR) is insufficient and a written complaint should be made to the magistrate by the public officer. This gives a free hand to public authorities to punish the offender by beating them brutally and simply doing away with the requirement of writing the complaint. Section 4 of the Act provides for discretion completely absolving the officers of their actions under the Act.
To cater to the needs of daily wage workers, the Unorganized Workers Social Security Act, 2008 was introduced so that the unorganized workers could benefit of all the Government welfare schemes. But the main loophole in the Act is Section 10 which mandates the worker to get registered by submitting an application to the District Administration in order to receive a certificate of registration. Recently, the Government introduced Pradhanmantri Garib Kalyan Yojna for the welfare of the poor and marginalized workers but amidst Covid-19, it is not practical for us to think that every worker will be registered under Unorganized Workers’ Social Security Act and as result those unregistered workers will be denied rights.
As we are discussing the condition of Indian workers, the struggle of individuals with disability isn’t any different. Here the question is: when physical contact is prohibited, and our public facilities don’t seem to be disability-friendly and barrier-free, have Indian authorities given any thought on how persons with disabilities will manage their mobility and access services? Policy makers must take into consideration whether someone with vision impairment, without guidance, is ready to spot the precise location of open shops, medical stores, hospitals? People with cognitive disabilities may need assistance even to access their government grant from their bank accounts. In the absence of accessible public facilities and assistive technologies, people with disabilities need human assistance. But social distancing makes this difficult. According to a survey conducted by the Ministry of Statistics, 2.2 per cent of India’s population is disabled. In effect, 86 out of every 1,000 Indians have a disability.
As has been mentioned above, The Department of Empowerment of Persons with Disabilities on the 9th of April, 2020 wrote to the states and Union Territories to follow guidelines in the wake of COVID-19 pandemic. One of the numerous suggestions given by the department was “reserving specific opening hours in retail provision stores including supermarkets for persons with disabilities.” In Telangana, officials of the Department for Women, Children, Disabled and Senior Citizens said that they have yet to implement the guidelines. In other states too, this suggestion seems to have not been taken seriously. The guidelines also task the states to provide special passes to the differently-abled if they have to go out. Some states are also providing them directly with essential items to further help them. On the ground, however, differently-abled are facing their own challenges every day despite the guidelines. Even though the government undertook initiatives to resolve their issues when the country was all set to enter the second week of lockdown, many people with disabilities across the country feel these initiatives are too little and too late.
Likewise is the condition of transgender individuals. They are socially discriminated against in India. Most of them have been forced out by their families as a result of which many have to indulge in begging and prostitution. During the lockdown this community is also going through a lot. Their major source of income is begging which is not sufficient to fulfill their basic needs such as food and health supplies. According to a report by National Centre for Transgender Equality (US based non-profit organization), many people from the LGBTQ community have weak immunity due to which they suffer from cancer, HIV aids, etc., which makes them even more prone to this contagious disease. Recently, the High Courts of Karnataka and Jharkhand directed state governments to ensure safety of transgender individuals but the main issue here is that most of the transgender individuals don’t have ration cards, aadhar cards, or bank accounts due to which it is not possible for them to benefit from government welfare schemes as has been well documented here by Aakar Patel (Executive Director at Amnesty International India):
“Making an Aadhar Card a prerequisite to access essential services and benefits can obstruct access to several constitutional rights, including the rights of people to food, healthcare, education and social security.”
To safeguard the rights of transgender people The Transgender (Protection of Rights) Act, 2019 was enacted but was not well-received by people from the transgender community as the bill deviates from what was laid down in NALSA v. UOI because the act provides for a very narrow definition to the term transgender and also the mechanism provided in the act is very inappropriate. The Act mandates every transgender person submit an application to the District magistrate under Section 5 after which District Magistrate will refer the application to the committee after which the person has to go through a screening process under Section 6 and after the committee is satisfied that all the conditions are met then the respective person is issued a certificate of third gender under Section 7. This differs from the Supreme Court Judgment in which Justice Radhakrishnan said “Article 19(1)(a) of the Constitution states that all citizens shall have the right to freedom of speech and expression, which includes one’s right to expression of his self-identified gender.” As per the Act only a few transgender individuals will be able to benefit from government welfare schemes which will make their situation even worse as they are deprived of their basic right to health and livelihood.
Policemen, Health Workers and all the COVID-19 warriors are being praised by everyone in society and are worth the appreciation as they are our frontline warriors but SafaiKaramcharis/Sanitation workers are our unsung heroes amidst the current scenario. Like health workers they also prevent the society from getting infected by cleaning its waste, but the difference between the two is that the latter is paid very low in proportion to the duties they discharge. Health Workers are provided with PPE kits, but these Sanitation Workers are not provided adequate health facilities which they should be provided with as it is their right to health under Article 21. Recently, in Dharavi one of the sanitation workers got infected with the virus which resulted in his wife also testing positive for covid-19 and dying unfortunately. This illustrates that when they are provided with inadequate facilities at work they put their lives at risk and touch those surfaces which we dread to touch. Recently, various State Governments announced compensation to the families of the deceased health workers for example: the Delhi Government announced compensation amounting to 1 crore and the Rajasthan Government announced compensation amounting to 50 Lakhs, but nothing has been done for the safaikaramcharis who are discharging such a crucial service to the society. The Supreme Court in the Case of Safai Karamchari Andolan & Ors. v. Union of India directed the government that a compensation of 10 lakhs has to be given to the family of sanitation workers in case of their death but no such directions have been issued by the government in the present scenario.
Concluding Remarks
In the situation of this hardship, we understand the efforts taken by the Government to protect its citizen from this pandemic but through this article, we want to acquaint the readers with the fact that, before implementing lockdown in a country like India, it is expected of the government to take into account the problems of marginalized sections of society and that there are some rights that cannot be derogated, as not everyone in the society is privileged enough to fulfill their basic needs. Covid-19 is a disease that has affected millions around the globe socially, economically and psychologically. It is a known fact that the Government actions will create inequalities in the society but the main question will be how effective those actions are, as in current times the above mentioned communities are going through acute hardship. Part III of the Indian Constitution Guarantees right to life and equality which are inherent rights and are to be safeguarded by the Government. As has been aptly said by the Chairperson of Human Rights Commission HC Bracelet that:
“This is a colossal test of leadership. It demands decisive, coordinated and innovative action from all and for all. We are physically distant today, but we must stand together.”
For more on COVID-19, see our special coverage.
Animesh Upadhyay is a fourth year law student at Dr. Ram Manohar Lohia National Law University, Lucknow, India.
Rushali Paneri is a third year law student at Manipal University, Jaipur.
Suggested citation: Animesh Upadhyay and Rushali Paneri, Government Actions: A Colossal Test of Safeguarding Rights Amidst Covid-19, JURIST – Student Commentary, May 9, 2020, https://www.jurist.org/commentary/2020/05/upadhyay-paneri-marginalized-communities-rights-covid19/
This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org
