WEBINAR 7: INDIA & SRI LANKA - Rights During a Pandemic: The Indian Experience
Thulasi K. RAJ
23 November 2020
The COVID-19 pandemic has led to palpable changes in the way we think and behave. It has also influenced the working of democracies around the world. In the Indian context, two threats to democracy are significant. The first is the assumption of wide powers by the executive. The second is the hands-off approach of the Supreme Court of India in rights adjudication.
Executive Excess
International human rights law requires that the restrictions imposed by the state must meet the tests of legality, legitimacy, and proportionality. I will confine the present discussion to legality. The test of legality demands a clear legislative basis. The mere existence of any law is insufficient: the law must be precise, accessible and foreseeable. Invocation and use of the laws in India show that this test is not being met.
The Indian Constitution does not contain a specific provision for health emergencies. Article 352 provides for the declaration of an emergency when national security is threatened by war, external aggression, or armed rebellion. It was felt that there is no specific legislation to govern the issues arising out of the crisis. Since this is a general problem in constitutional democracies, some countries have passed new legislation. The United Kingdom, for instance, passed the Coronavirus Act, 2020, and Germany passed the Epidemic Protection Act to amend its earlier legislation on infectious diseases.
However, no new legislation was passed in India and the state decided to deal with the crisis using existing legislation. Three levels of legal framework were used and a series of restrictions on movement, travel and access were made by exercising power under: (1) the Disaster Management Act (DMA); (2) the Epidemic Diseases Act; and (3) the criminal law provisions under the Penal Code and the Criminal Procedure Code.
The Disaster Management Act was intended to manage disasters–whether natural or ‘man-made’. For instance, a health crisis such as COVID-19 requires decision-making sensitive to the crisis and that focuses on the kind of health policies required. The nature and extent of the restrictions to be imposed on the public, the effectiveness of the regulation, the procedures for testing, the availability of treatment, and the regulation of healthcare workers are some of the relevant concerns. However, the DMA was not suited to address this health crisis. Many provisions of the Act deal with issues such as evacuation, removal of debris, rescue and relief camps, monitoring of construction in areas affected by the disaster, etc.
This is clear from the nature and purpose of the legislation. However, the term ‘disaster’ was defined widely in the Act and this was utilized to invoke the Act. A National Disaster Management Authority (NDMA) established under the Act was conferred with sweeping powers to lay down plans and guidelines for disaster management. The NDMA – a body not competent and not originally intended to address pandemics – was authorized to lay down policies and orders to address the pandemic. Consider the nature of powers exercised by the NDMA. In March 2020, a national lockdown was announced and enforced (with a mere four hours’ notice) under this law, shutting down all kinds of interstate and international transport and public and private institutions, with few exceptions. The NDMA, a highly unsuitable authority endowed with discretionary powers, issued a series of executive orders which were amended from time to time. The nature of the authority and the manner of its exercise of power was far from foreseeable.
The Epidemic Diseases Act (EDA), a colonial law of 1897, was also used by both the central and state governments. It empowers both levels of government to take measures when an epidemic breaks out. Although the legislation has merely four provisions, its powers are indeed very wide in nature and worded in terms like ‘measures as deemed necessary’. As a result, while no concrete powers sensitive to the pandemic are laid down, vast powers are given which enable the executive to spell out the regulation through executive orders. The legislation is, simultaneously excessive on one level and insufficient on another. Journalists were arrested under this law for accurately reporting issues related to the lockdown. Section 4 of the Act grants public authorities an absolute immunity from prosecution for actions taken under the Act. The Central Government also promulgated the Epidemic Diseases (Amendment) Ordinance, 2020, authorizing itself to inspect goods and vehicles and detain certain persons using transport facilities based on vague criteria.
Both laws are vulnerable to constitutional scrutiny on account of their vague provisions granting wide and unspecified powers to the executive. These provisions have been grossly misused by the government–even to the extent of charging opposition leaders (who wanted to visit a rape victim) under the EDA. Due to the overbreadth of these provisions, virtually every restriction since the pandemic has taken the form of an executive order. There has been no parliamentary oversight or justification for these measures.
The criminal law framework is similarly vague. Section 144 of the Code of Criminal Procedure is intended to prohibit unlawful assembly in times of law and order crisis, nuisance, or public danger. This law was enforced in several cities and gave police officers unfettered powers to control the movement of people. The police often abused people who were simply outside to get essentials such as groceries, street vendors, and even doctors travelling for essential work. The police subjected those who violated lockdown restrictions to extra-judicial punishments such as forcing them to crawl on the street.
Judicial Responses
Rosalind Dixon and David Landau have recently argued that, in recent times, judiciaries in a range of countries have used ‘abusive judicial review’ to threaten democratic norms. They say that courts have often legitimised and enabled authoritarian action and disabled the functioning of the political opposition. The Indian Supreme Court seems to fit the bill, and I will now identify a variety of tools used by the Court to undermine democracy.
First, I will make two caveats. The Indian Supreme Court consists of 30 judges and is certainly a polyvocal institution with judges reacting differently to cases. However, certain trends can be identified from the way the Court has responded to rights adjudication since the outbreak of the pandemic. While the conduct of the Court is not altogether new, it is demonstrably more visible during these times due to the steady increase in executive excess.
Further, COVID-19 has brought various socio-economic concerns to the forefront of political debate, which are in the exclusive domain of the legislature. It is not the Court’s function to resolve economic, health or social crisis. My criticism, however, is that in cases of rights infringements meriting adjudication the Court has failed.
The Court has often remarked that the other branches of government are best suited to resolve social and economic problems thus placing enormous trust in the executive to take action and declaring itself precluded from interfering. In almost all cases against the government, the Court has adopted different tools to maintain this non-interference.
The first tool is that of evasion. In cases against the government , the Court refuses to make a decision one way or the other. Judicial evasion manifests through simply closing the matters without answering the legal question or through the use of indefinite adjournments. When migrant workers were unable to return to their home states, a direct consequence of the unplanned lockdowns, several cases were filed before the Court requiring the government to provide relief to them. The sudden loss of their livelihood threatened migrant workers with starvation and death.
The central government managed to get many of these cases closed, solely based on its assurance that efforts were being taken to alleviate the concerns. On 31 March, counsel for the government assured the Court that no migrant workers were now left walking on the road though reports continued to show their unending plight. There were no consequences and no one was held accountable for the misrepresentation: neither the government, nor the lawyer. Cases were disposed by the Court, recording the affidavits of the central government, in most cases, without ensuring compliance of any manner. Even if the Court believed that enforceable rights were not at play here since these were ultimately socio-economic concerns, the case deserved legal adjudication either way.
During the health emergency, we have also seen numerous political arrests of those who protested or, in some cases, merely disagreed with the government handling of the pandemic. Student leaders and social activists were arrested for charges such as sedition and kept in detention for long periods of time. Criminal complaints were filed against opposition leaders for raising issues with the government. Strategic The arrests were strategically made, and the pandemic was used as a pretext for arrest and detention. Restrictions on protest and assembly during the pandemic have enabled this practice. The absence of parliamentary sessions has aided the government to remain unaccountable to the legislature.
The Court heard specific arguments, on numerous occasions, that detainees were subject to a high risk of COVID-19 infections in the prisons, which were hotspots of the contagion. However, in cases of political detentions–whether seeking the quashing of criminal charges, bail or stay from arrest–the Court consistently denied any relief. In these cases, as a second strategic tool, the Court practiced complete abstinence. This was made possible by the use of its discretionary power to admit and dismiss cases. This abstinence also has the impact of postponing and diluting public discourse, since the Court attracts significant popular attention.
The third and striking tool is direct attack on constitutional rights. In August, a lawyer who tweeted about the conduct of the Chief Justice was convicted of contempt of court. The Court took it upon itself to act as judge, jury, and executioner. It rejected the argument that criticism of the judge falls within the ambit of free speech. The judgment, apart from its obvious legal flaws, reflects an institutional transformation of the Court from a counter-majoritarian court. It has gone on the attack against civil liberties, and the rights to dissent and criticize. It has transformed into the accomplice of an intolerant executive.
Recently, the Chief Justice of India, when asked in an interview about judicial restraint, readily responded that declarations of rights are now a much lower priority than in other times. This comment sums up the response of the Supreme Court towards the infringement of rights since the pandemic. According to the latest V-dem Institute report, India is on the verge of losing its status as a democracy due to the authoritarian policies pursued by the current government. Indian democracy currently suffers from twin pathologies: of both an overreaching executive and an underreaching Court.
Thulasi K. Raj is a lawyer at the Supreme Court of India and the Kerala High Court. She is also an Equality Fellow at Centre for Law & Policy Research, Bangalore. Currently, she is a Visiting Fellow at the Institute of Law and Philosophy, Rutgers University. Previously, she was an Equality Fellow at Melbourne Law School (2019). She appeared (jointly) for the petitioner in Joseph Shine v. Union of India (2018) before the Indian Supreme Court in which the Court held the criminalisation of adultery to be unconstitutional. She completed her Masters in Law at University College London. Her research interests are legal philosophy and constitutional law, with a particular focus on anti-discrimination law. She frequently writes newspaper articles on relevant socio-legal issues.