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The Worldwide Lockdown to Contain Covid-19

22-Jun-2020

Monica Yadav
Associate Professor
Amity Law School
Amity University Gurugram

The Worldwide Lockdown to Contain Covid-19: Necessity versus Legality

The enormity and extent of the Corona virus (Covid-19) pandemic is being felt world over. No Nation is immune to it and the pandemic poses serious public health threats, to the extent of threatening the life of the Nation. To contain further spread of this pandemic, Nations have taken drastic steps and closed not only their international borders but also declared lockdowns within their territories.

There are those who question the authority of the Governments to curb Human Rights Laws and the rights guaranteed by the Constitution. In India, the Epidemic Diseases Act, 1897 and the Disaster Management Act, 2005 provide the Central, State or Local Government with the power to take necessary measures to control any epidemic disease or disaster.

The current measures taken by various State Governments and Union Government stem from the powers conferred under the above-mentioned Acts and Rules made thereunder. Even though the Epidemic Diseases Act, 1897 needs to be replaced with a more comprehensive Law, dealing with Public Health, it still provides the governments with the necessary powers to take all necessary action to combat any epidemic diseases. The Disaster Management Act, 2005 further augments these powers.

On the International front, the International Covenant on Economic, Social and Cultural Rights, adopted by most countries, under Article 12(1) recognizes, “...the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” Further, Article 12(2)(c) thereof provides that the State Parties may take steps for “...the prevention, treatment and control of epidemic, endemic, occupational and other diseases,” for the full realization of this right. In simple words, in order to prevent and control epidemics, Human Rights Law which guarantees everyone the right to basic Human Rights also recognizes the need to put restrictions on some of these rights. The conditions for derogating from the rights provided under Article 12(1)ibid are found in the Siracusa Principles, adopted by the UN Economic and Social Council in 1984, which state that in case of emergency situations, the State Parties may derogate from its obligations: -

  • When faced with a situation of exceptional and actual or imminent danger which threatens the life of the nation
  • In doing so, a State Party derogating from its obligations under the Covenant shall make an official proclamation of the existence of a public emergency threatening the life of the nation
  • State Party availing itself of the right of derogation shall terminate such derogation in the shortest time required to end the public emergency which threatens the life of the nation
  • The severity, duration, and geographic scope of any derogation measure shall be such only as are strictly necessary to deal with the threat to the life of the nation and are proportionate to its nature and extent
  • The derogation is authorized by law and as such it is subject to several legal principles of general application
  • It shall be made in good faith based upon an objective assessment of the situation in order to determine to what extent, if any, it poses a threat to the life of the nation; and
  • No State Party shall, even in time of emergency threatening the life of the nation, derogate from the Covenant’s guarantees of the right to life; freedom from torture, cruel, inhuman or degrading treatment or punishment, and from medical or scientific experimentation without free consent; freedom from slavery or involuntary servitude; the right not be imprisoned for contractual debt; the right not to be convicted or sentenced to a heavier penalty by virtue of retroactive criminal legislation; the right to recognition as a person before the law; and freedom of thought, conscience and religion. These rights are not derogable under any conditions even for the asserted purpose of preserving the life of the nation

According to the Coronavirus Disease 2019 (COVID-19) Situation Report - 73 of the World Health Organisation (WHO), as on 2nd April 2020, globally the number of confirmed cases was 8,96,450 and total number of deaths due to Coronavirus were reported to be 45,525. On the brighter side, no new countries/territories/areas reported cases of COVID-19 in the past 24 hours. The WHO’s Global Risk Assessment is still very high, and till we actually see the number of new cases in already infected regions begin to decline, we as responsible citizens of this global village, must abide by the restrictions such as quarantine and restrictions put on the freedom of movement, to control the spread of this pandemic and mitigate the loss to human life. At the same time the Governments need to ensure that these restrictions do not result in discrimination or loss of human dignity.

In conclusion, it is argued that there may still be questions regarding the legality of the actions taken by the Governments, however, unless the measures are discriminatory or in any way derogatory of the above mentioned basic Human Rights, these remain, not only necessary but, are also within the legal boundaries.

References

Amity Law School