Coronavirus and the Constitution

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Article 23, forced labour, pandemics, right to health

Late last week, the World Health Organisation declared the outbreak of Covid-19 [“the Coronavirus”] to be a pandemic. While the epicentre of the disease is presently in Europe, it has also found its way to India, with numbers expected to rise sharply in the coming days and weeks.

The Coronavirus presents legislators, the government, and public health professionals with a series of complex policy challenges. Does the Constitution also have something to say about it? Over the years, the right to health has been read into the right to life under the Article 21; and if that right is to mean anything at all, it would require a set of steps to be taken to safeguard the population during a pandemic (see, for example, questions of access to HIV medicine in the South African Constitutional Court case of Treatment Action Campaign).

Here, however, I will discuss a different issue. As scientists have pointed out, the most effective method to combat the spread of the pandemic is through enforced “social distancing.” As the coronavirus spreads through contact, maintaining distance from an infected individual prevents further transmission. The problem, however, is that carriers of coronavirus are often asymptomatic, making detection and control (through quarantining and isolation) even more difficult. For this reason, authorities in a number of countries have now advised people – wherever possible – to work from home until the spread of the pandemic is adequately contained (or a vaccine is developed). Authorities have stopped short, however, of making this a requirement; thus, it is up to individual private employers to decide whether or not to allow their employees to work from home.

In this post, I want to suggest that giving an employee the choice between (a) exposure to the coronavirus by requiring them to come to work on the one hand, and (b) losing their job, on the other – amounts to forced labour under Article 23 of the Constitution. This is because Article 23 – as interpreted by the Supreme Court in PUDR v Union of India – understands forced labour to exist wherever the choices that exist before an employee are not genuine choices at all. Recall that in PUDR, the Supreme Court held that Article 23 – which applies between private parties, and not the State – guaranteed the right to a minimum wage. The basis of the Court’s judgment was that “any factor which deprives a person of a choice of alternatives and compels him to adopt one particular course of action may properly be regarded as ‘force’ and if labour or service is compelled as a result of such ‘force’, it would be ‘forced labour’.” Clarifying this point further, the Court specifically noted that in situations of unequal bargaining power (as tend to exist between employers and employees), non-payment of minimum wage under the employment contract would be evidence that in entering into the contract, the worker had been “acting not as a free agent with a choice between alternatives but under the compulsion of economic circumstances … the word ‘force’ must therefore be constructed to include not only physical or legal force but also force arising from the compulsion of economic circumstance which leaves no choice of alternatives.“

In other words, therefore, the Court understood the word “forced” in “forced labour” to mean not just physical force (such as putting a gun to your head and “forcing” you to work), but as including any situation where an employer was able to leverage their institutional power (as the owner of property or capital) in order to effectively deprive a worker of legitimate choices. I have, elsewhere, defended this interpretation of Article 23. Here, I want to argue that the logic of PUDR applies squarely to coronavirus: telling an employee “choose between exposing yourself to a pandemic, contrary to express medical advice on the one hand, and losing your livelihood on the other” is an illusory choice in exactly the same way that telling them “work for less than a minimum wage or don’t work at all” is an illusory choice. Both are hit by Article 23.

I submit, therefore, that in the case of a pandemic, where a failure to follow the rules of social distancing and self-quarantining is expressly found to put an individual at a non-trivial risk of exposure, there is a presumptive, enforceable right to work from home. Here, however, there is a problem: in situations where working from office and working from home are broadly substitutable, the right is an absolute right; in a majority of cases, however, the job will require the physical presence of the employee. Now, in some countries, suggestions have been made to grant paid sick leave where required, with the government stepping in to help businesses recoup losses. We may consider that in a future post, but for my purposes here, I want to flag that in such cases, complete enforcement of Article 23 will nullify the employer’s right to freedom of trade under Article 19(1)(g). In such a case – where two rights under Part III of the Constitution clash – the Supreme Court’s recent RTI Judgment held that the doctrine of proportionality is to be applied – which, in practical terms, means that the two rights should be harmonised so that there is the least possible infringement of both.

What might such a harmonisation look like? I would suggest that where the nature of the work requires physical presence, the private employer is constitutionally obligated to put into place all required mechanisms to minimise the risk of exposure, in accordance with WHO advice (for example, the provision of hand sanitisers as disinfectants in the workplace, ensuring minimal distance between workers, and so on). This – I would argue – is the only correct method to balance the possible clash of rights under Articles 23 and 19(1)(g).

Consequently, the upshot of my argument is that (a) in workplaces where physical presence is not a necessity for the job, Article 23 grants to workers an enforceable right to work from a place of social isolation (which, in most cases, will be the home); and (b) in workplaces where physical presence is a necessity, the employer is required to take all reasonable measures to minimise the possibility of exposure.

It is important to note that in this post, the discussion has been limited to the relationship between employers and employees, within the scheme of Article 23 (and, where required, balanced against Article 19). The obligations of the State in such a situation – including a possible obligation to recompense private employers in situation (b) above – will be discussed in a future post.

 

 

 

Delhi High Court rules on Article 21 and Access to Medicine

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access to medicine, intellectual property, right to health

Today, the Delhi High Court issued an important judgment on Article 21, the right to health, intellectual property and access to medicine. The issue in Mohd Ahmed v. Union of India is set out in the first paragraph:

“Whether a minor child born to parents belonging to economically weaker section of the society suffering from a chronic and rare disease, gaucher, is entitled to free medical treatment costing about rupees six lakhs per month especially when the treatment is known, prognosis is good and there is every likelihood of petitioner leading a normal life.”

The petitioner, Mohd Ahmed, was/is suffering from a rare disease, called the “Gaucher Disease”. There is a known treatment – Enzyme Replacement Therapy – which, however, is extremely expensive, and the drugs required for it are manufactured by only three pharmaceutical companies. The reason for the high expense, as the Court explains, is the rarity of the disease – because the disease is so uncommon, pharmaceutical companies argue that they can only recoup their research and development costs by pegging the price at extremely high levels. In the language of IP, such drugs are known as “orphan drugs“.

It was argued on behalf of the petitioner that failing to provide him with treatment would be a violation of his right to health (read into Article 21 via the right to life). On behalf of the Delhi government, it was argued that there were various exceptions to the right to health – in particular, exceptions based upon the resources available to the government, and its own best judgment of what kind of healthcare it would prioritise. What this meant was that no individual person could make an enforceable constitutional claim upon the State for medicine – rather, it was up to the State to allocate its resources in a manner that ensured the best and widest possible healthcare to as many people as possible.

Thus, the basic issue in this case was: (given that the right to health has been read into Article 21), what amount of deference ought a Court accord to the legislature’s determination that the lack of resources do not allow it to provide medical treatment to a particular person? And, as a corollary, does the degree of deference change with the nature of the case, turning upon factors such as the patient’s poverty, the seriousness of the disease, the availability of treatment, and so on.

In its reasoning, the Court found that although a number of countries had specific policies in place to address the problems of orphan drugs, no such policy existed in India (paragraph 38 – 42). Because of the separation of powers, however, the Court could not require the legislature to draft a law or frame a policy. (paras 44 – 45). The only question, then, was the constitutional question: “does the government owe a constitutional duty to provide free medical treatment to the petitioner suffering from a rare and a chronic disease, even though the treatment is expensive and recurring.” (Para 46)

The Court, after referring to Article 21, extensively cited the ICESCR (see Article 12), and General Comment 14 to the ICESCR, which fleshes out in detail the content of the right to health. Citing the prior cases of Paramanand Katara v. Union of India and Paschim Bangal Khet Mazdoor Samiti, the Court held:

“Every person has a fundamental right to quality health care — that is affordable, accessible and compassionate.” (Para 59) The Court conceded that availability of resources was an important factor – and that in light of competing claims like education and defence, it could not “direct that all inhabitants of this country be given free medical treatment at state expense.” (Paras 62 – 63) Nonetheless, crucially – and directly echoing the ICESCR’s jurisprudence, that every right has a minimum core which is not subject to resource constraints and is directly enforceable – the Court held:

“By virtue of Article 21 of the Constitution, the State is under a legal obligation to ensure access to life saving drugs to patients. A reasonable and equitable access to life saving medicines is critical to promoting and protecting the right to health. This means that Government must at the bare minimum ensure that individuals have access to essential medicines even for rare diseases like enzyme replacement for Gaucher disease. Availability of a very expensive drug virtually makes it inaccessible.” (Para 68)

And:

“Government cannot cite financial crunch as a reason not to fulfil its obligation to ensure access of medicines or to adopt a plan of action to treat rare diseases. In the opinion of this Court, no government can wriggle out of its core obligation of ensuring the right of access to health facilities for vulnerable and marginalized section of society.” (Para 69)

And, in conclusion:

“Although obligations under Article 21 are generally understood to be progressively realizable depending on maximum available resources, yet certain obligations are considered core and non-derogable irrespective of resource constraints. Providing access to essential medicines at affordable prices is one such core obligation.” (Paragraph 87)

Today’s judgment does two important things. First, it clarifies the content of the right to health under Article 21. One of the signal problems with the Court’s Article 21 jurisprudence over the last twenty years has been the lack of clarity, and a cavalier, laissez-faire approach towards this constitutional provision. By more or less expressly incorporating the ICESCR – with its concomitant principles of what the scope of the right is, what the obligations of the government are (see, e.g., General Comment 14), and the adjudicatory principles of progressive realization, minimum core and non-derogable implementation with respect to the most marginalised sections of society, the Court brings determinate standards to its Article 21/right to health jurisprudence. This would be helpful in future cases involving the right to health.

Secondly, by expressly invoking the constitutional right to health in a case where the driver of inaccessibility is the regime of intellectual property (patent, in this case), the Court lays the foundations of a jurisprudence that has been gaining ground in many countries: the constitutionalisation of IP law. That is to say, although the Court does not deal with IP issues in this case, it makes it clear that the Constitution is relevant. This is important because of a divide within the IP regime: IP maximalists argue that the balance between various rights and interests – the right of the inventor to profit from his work, the interest of the public in fostering more innovation and creativity by protecting inventors’ rights, and the public’s competing right to access medicine – are all balanced within the IP regime, through inbuilt exceptions such as compulsory licensing. However, of late, there has been a critique of this position. Scholars like Helfer and Birnhack have argued that basic human rights such as the right to free expression and the right to health ought to be invoked to determine the scope of the IP regime and its exceptions. So, for example, when we’re dealing with question of photocopying school/college textbooks, and the question of how much copying constitutes “fair use” under the copyright regime, these scholars argue that the right of free expression and the right to education should be invoked in determining how much use is fair use (as opposed to the traditional analysis, which focuses only on what level of exceptions would foster greatest innovation, without considering problems of individual access (that might be barred because of poverty, unaddressed y the market).

By invoking the specific, individual right to health in a case where medicines have been priced out because of IP, the Court thus opens up the possibility of using constitutional law and constitutional rights in subsequent cases, where IP is implicated much more directly: for example, cases of compulsory licensing, or the scope of S. 3(d). Invoking the right to health, for example, it could be argued that in S. 3(d) of the Patent Act (see here), which denies patents for “the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy  of that substance…”, and is aimed at preventing evergreening, the term “known efficacy” should be read strictly so as to ensure that essential medicines do not remain perpetually behind exorbitant patent paywalls. Whether that step is taken by the Court in future cases, of course, remains to be seen.

(Interestingly, today’s decision is similar in many respects to the famous South African case, Treatment Action Campaign v. Minister for Health, which is well worth a read)