To talk about civil rights in the midst of a global pandemic may seem out of place. However, as the Kenyan legal scholar Joshua Maldizo Nyawa reminded us recently, Lord Atkin’s legendary dictum – that “amidst the clash of arms, the laws are not silent” – applies as much to a public health crisis as it does to times of war or to Emergencies. In fact, it is precisely because of the sweeping powers that governments arrogate to themselves during times of crises, that it becomes even more important to scrutinise the legality of their actions; and this importance is accentuated by that fact that often, those sweeping powers tend to entrench themselves into the legal landscape even after the crisis has passed.
The most sweeping impact upon rights, of course, is of the nation-wide twenty-one day “lockdown”. The lockdown has affected both the freedom of movement (through an effective – if not formal – curfew, and more on that later) as well as the freedom of trade. The exact scope of the lockdown has been the subject of much confusion, as it is the product of at least three intersecting sets of legal regimes.
First, at the central level, the government has invoked the National Disaster Management Act. Section 10 of the NDMA authorises the central authority to issue guidelines and directions to the several state governments with respect to addressing disasters. The Authority’s Guidelines – issued on 24th March 2020, and supplemented by various addenda from time to time – required a closure of government offices, commercial establishments, (with certain exceptions), industrial establishments, transport services, hospitality services, places of worship, large gatherings, and so on. Note that the NDMA Guidelines do not themselves impose a “curfew”. The closest they come to prohibiting individual movement is through the bar on “social/political/sports/entertainment/academic/cultural/religious function/gatherings.” Neither “functions” nor “gatherings” have, however, been defined. In addition, Guideline 14 requires Incident Commanders to “issue passes for enabling essential movements“, while Guideline 15 notes that these restrictions “fundamentally relate to movement of people.” As indicated above, however, the impact of the Guidelines upon the movement of individuals is – if at all – incidental (through the closure of public, commercial, and private spaces). The Guidelines do not themselves prohibit or restrict individual movement.
Secondly, several state governments have invoked the 1897 Epidemic Diseases Act, a legislation that grants to the states formally unlimited powers to prevent the outbreak or spread of an epidemic. Consider, for example, Regulations passed by the Maharashtra state government on 13th March, 2020, providing for isolation and quarantining of individual with a travel history, the sealing of specific areas from where Covid-19 has been reported, the banning of mass congregations, and so on. These Regulations intersect more closely with the third legal regime, which is separate Section 144 orders passed by individual magistrates/Commissioners of Police.
As many of the 144 orders are not publicly available, it is difficult to glean the exact scope of the restrictions that have been imposed in different parts of the country. What is clear, however, is that under law, there is no “nationwide curfew” at present; the NDMA Guidelines do not make any mention of a curfew, and even EDA Regulations such as those passed by Maharashtra impose a ban on gatherings, but not on individual movement. It should also be evident – in my view – that a ban on individual movement – an actual nationwide curfew – would be disproportionate. Recall that Covid-19 spreads through direct contact or close proximity; public health guidelines require “social distancing” (at a stipulated distance of two metres) for individuals in general, and self-isolation and quarantining for people with symptoms. For this reason, containment orders in other jurisdictions are more specific in this regard: the United Kingdom, for example, has issued Guidance that prohibits gatherings of more than two people outside, and allows individual movement only for good reason (such as exercise, buying essential items, and so on). The absence of such specificity in the intersecting legal regimes – as discussed above – has lead to a lot that has been lost in translation at the implementation level, with reports of policemen physically assaulting individuals for being out on the streets.
It is also important to note that neither the NDMA nor the Epidemic Diseases Act require that the government’s decisions be based on specific and verifiable scientific advice. An important limb of the proportionality standard – where rights are infringed – is that the measure be necessary to achieve the State goal (in this case, containing the “disaster” or the “epidemic”). There has to be, therefore, a strong means-ends relationship between the measures taken by the government, and the goal of containing the epidemic – a relationship that, for obvious reasons in such cases, has to be founded on scientific advice. This is an important shortcoming in both enactments, and going forward, it is worth considering the space of public disclosure requirements in laws that purport to provide government with sweeping powers in times of public health crises; the presence of such provisions, I would suggest, would itself be a step towards ensuring that these laws are proportionate.
As indicated above, State regulations under the EDA require compulsory quarantining for people with travel histories, or those who show symptoms. There have been reports, however, of quarantine-jumping in many places, and state governments have taken to innovative methods to enforce the quarantine. One method involves an ink-stamp on the quarantined individual’s body, which can be erased after the expiration of the fourteen-day period. The Karnataka government, however, has gone further: it has made publicly available the house numbers, PIN Codes, and immediate travel history of those who have been quarantined (whether they have tested positive or not).
While the ink-stamp – as long as it is non-stigmatic and temporary – might just about meet the test of proportionality in this case, it seems obvious to me that the publication of personal and private details does not; what this amounts to, in essence, is the government shifting its burden of enforcement (of the quarantine) to the individual, whether or not she is at fault. In other words, the government cannot cite its inability to enforce the quarantine as a justification for infringing privacy rights; this, in my view, violates the proportionality standard (in particular, the necessity prong), as there clearly exist other, less restrictive ways of enforcing the quarantine.
Police Violence and the Closure of the Courts
A final point: as I noted above, there are widespread reports of excessive police violence in enforcing the curfew (which, as we have seen, doesn’t really exist). This has been accompanied by arbitrary action, such as the forceful closure of meat and fish shops. Unfortunately, at the same time, there has also been an effective closure of the courts, which has effectively led to a suspension of rights. While the Supreme Court remains formally open for urgent cases (as do the High Courts), there is no guidance on what constitutes an “urgent case.” In this regard, I would suggest that the Directive issued by the Chief Justice of the South African Constitutional Court: Chief Jusice Mogoeng specified that subordinate courts would remain open for urgent matters including “bail applications and appeals or matters relating to violations of liberty, domestic violence, maintenance and matters involving children.” It bears noting that the categories are inclusive – they serve as guidance for what constitutes an “urgent matter”, without being exhaustive.
Indeed, the reference to domestic violence is particularly important, as one of the corollaries of a nationwide lockdown is that individuals in abusive or violent relationships will – quite literally – be forced to stay. Or, to put it another way: courts should remain open to hear cases that arise as a consequence of the lockdown itself: whether it is State overreach in restricting individual rights in the name of fighting coronavirus, or fall-outs such as spikes in domestic violence. There is a delicate balance that needs to be drawn at this time – but it is a balance that must be drawn nonetheless.