THE CHALLENGES AND LEGAL IMPLICATIONS OF COVID-19 IN INDIA By - Suparna Banerjee

THE CHALLENGES AND LEGAL IMPLICATIONS OF COVID-19 IN INDIA

Authored By - Suparna Banerjee

The present article seeks to analyse the challenges that the pandemic has brought to the forefront of the Indian society and the legal system. It also tries to evaluate whether the government has been successful in meeting such new challenges. The article gives a detailed discussion on the violation of certain categories of fundamental rights like the right to life, right to livelihood highlighting the problems faced by the migrant workers and the right to privacy enumerated in Article 21 of the Indian Constitution, the right to education under Article 21A.  From an analysis of these issues it would be relevant to conclude that though there have been judgments in the past upholding these rights and though it is a constitutional obligation of the state to protect these rights but in a majority of the decisions taken by the government, such obligation has not been fulfilled. When discussing about the issues of child abuse, mental health and domestic violence, it has been found out that only after the lockdown was lifted that these matters had caught the attention of the government but nothing much was done to prevent or control such issues right at the beginning. The pandemic has had both a positive and a negative impact on the environment. With regard to the legal system, we may safely conclude that the pandemic has restructured the functioning and the manner of working of the courts and the legal professionals in a better manner and has also adversely affected it in certain areas.

The Covid-19 pandemic came as a sudden shocking event to the entire world. It opened up new challenges across the globe in several areas. India was also not far behind in witnessing the severe consequences of the global pandemic. There are several areas where the pandemic has left its disastrous impact which should be brought to the forefront.

Covid- 19 and the Fundamental Rights

The Constitution of India is the supreme law of the land. It gives to the citizens of this country and in some cases to all persons irrespective of whether they are citizens or not the Fundamental Rights which are the basic rights guaranteed to every individual to live a life of dignity, safety and security. These rights are safeguarded by the State and any violation of the Fundamental Rights of an individual will entitle him to approach the court and seek appropriate remedy. During the pandemic, India has seen gross violations of several Fundamental Rights guaranteed by the Constitution.

Right to Life

 The Right to Life enshrined in Article 21 of the Constitution of India has been infringed on several occasions. Article 21 of the Constitution of India states that no person shall be deprived of his life or personal liberty except according to a procedure established by law. The duty of the state is paramount in protecting the life of the individuals of the country. However the Government has failed to tackle issues of scarcity of oxygen supply in hospitals, shortage of covid-19 medicines, timely availability of the vaccines and Covid 19 tests.[1] The failure of the Government of India to take prompt action on such important matters has resulted in the loss of lives of several individuals. There have been people whose lives could not be saved despite best efforts by the medical professionals but the issue is about those individuals who died due to non availability of oxygen supply in the hospitals, shortage of hospital beds and the shortage of covid -19 medicines.

 The right to life encompasses the right to health also. At the international level, the right to health is also recognised as a human right. The International Covenant on Economic, Social and Cultural Rights 1966 recognises the right of everyone to the enjoyment of highest attainable standard of physical and mental health and puts an obligation on the State Parties to take steps to prevent, treat and control epidemic, endemic and other diseases. It also casts an obligation on the States to ensure medical service and medical attention in the event of sickness.[2]

 Not only were the people of this country deprived of their right to life but also to their right to health which includes the right to get proper medical treatment. In Francis Coralie Mullin v. The Administrator, Union Territory of Delhi,[3] the Supreme Court observed that the right to life includes the right to livelihood, decent standard of living and hygienic conditions in the workplace as well as the right to leisure. The Right to Health is an inseparable part of the Right to Life in Article 21. As far as the obligation of the government is concerned, in Paschim Banga Khet Mazdoor Samity v. State of West Bengal,[4] the Supreme Court held that

it is the responsibility of the government to provide adequate medical aid to every person and to secure the welfare of the people. With regard to the obligation of the medical professionals, the Apex Court in Parmanand Katara v. Union of India[5] has observed that every doctor whether he is working at the government hospital or in a private hospital has to provide medical help to all the people for preserving their lives. It also observed that it is the government’s duty to preserve life.

Though medical professionals can be guilty of medical negligence but during this pandemic more than the doctors, it was the duty of the government to provide timely availability of medicines, oxygen cylinders, vaccines and other emergency facilities at the hospitals. The doctors can only use their expertise to treat patients but without the necessary equipments that are needed to treat patients, we cannot blame them for the loss of lives. We have seen the amount of hardwork and dedication that all the health care professionals have shown during these challenging times. They had been away from their families for months doing their duties with utmost devotion. Many had contracted the disease themselves while treating and coming into contact with the infected patients and as a result had lost their lives. The health care professionals had worked day and night, sacrificed their food and sleep to save people from the deadly virus. However their efforts could not bring out the desired results due to the failure of the government to provide the required support. Although the government has promised compensation to those whose family member or members have passed away due to Covid and also provide them benefits under various benevolent schemes but the question still remains – Is monetary compensation sufficient to deal with the agony of the loss of life of a near and dear one ? Can just paying or promising to pay compensation relieve the government from its paramount constitutional and legal obligation of protecting the lives of the people and of providing proper medical assistance? Such questions still remain unanswered.

The lockdown imposed during the pandemic also increased the suffering of the migrant workers to a great extent. The lockdown deprived them of their right to livelihood and lives also. In Olga Tellis vs. Bombay Municipal Corporation,[6] the Supreme Court held that the right to life includes the right to livelihood also. With loss of jobs and no hope of further employment these migrant labourers had decided to go back home but their journey back to their homes was not a smooth one. These workers had to trudge miles after miles to reach their hometown due to stoppage of all modes of transport during the lockdown. Many workers lost their lives during this journey out of starvation. Initially the migrant workers received no financial and medical support from the government during their journey. To add to their misery, some were even brutally attacked by the police for flouting covid- 19 norms. However after seeing the plight of such workers the government had decided to arrange Shramik special trains for the workers from 1st May 2020 who were stuck in several parts of the country .A decision was made by the government to charge Rs 50 extra from each passenger in addition to the sleeper class fare, but this added to an extra financial burden on the migrant workers. On 16th May an initiative was started by the government in the form of a National Migrant Information System which was a central repository of the plight of the migrant workers. It would track the information of those workers who had travelled availing the ad-hoc arrangements made by the government but would not be able to track the information of those workers who did not avail such arrangements made by the government. [7]

The government’s decision to impose the lockdown was no doubt necessary to combat the spread of the virus but the decision should have been taken after reviewing the possible consequences especially the problems that would be faced by the migrant workers. The loss of lives, unemployment, starvation, health issues faced by these workers was a clear violation of the right to life and livelihoods of these migrant workers and the measures taken by the government were not satisfactory to meet the situation.

Right to Privacy

There is no provision in the Constitution of India which expressly guarantees the right to privacy. However over the years through several judgments, the Supreme Court of India has recognised the right to privacy to be implicit in Article 21 of the Constitution of India. In Kharak Singh v. State of U.P.[8]among several other issues, one question that was to be decided by the Apex Court was whether the right to privacy is a fundamental right or not. Here the Court ruled that the right to privacy was not recognised as a fundamental right under the Indian Constitution.

In 2017, the Supreme Court in Justice K.S. Puttaswamy (Rtd.) and Anr. v. Union of India and Ors[9] held that the right to privacy is a fundamental right and it is protected under Article 21. It overruled Kharak Singh and M.P.Sharma’s case where it was held that the right to privacy is not a fundamental right.

In 2019, in K.S. Puttaswamy v. Union of India[10] popularly known as the Aadhaar case, the Apex Court observed that the right to privacy is a fundamental right not limited to Article 21. It has its ambit across the entire Part III of the Constitution. Privacy ensures that human beings can lead a life of dignity by securing the inner recesses of the human personality from unwanted intrusions and it imposes a positive obligation on the State to take all necessary measures to protect the privacy of an individual. It also restrains the State from committing an intrusion upon the life or personal liberty of the citizens. This case also dealt with privacy of information. The court observed that any data which contains the medical information of a person is considered to be a private information belonging exclusively to that person.

In order to identify people who were infected with the covid 19 virus the Government of India launched the Aarogya Setu application on 2nd April 2020.  The Aarogya Setu application uses contact tracing to record details of all people a person may have come into contact with in their daily activities. If any one of them at a later point in time, tests positive for covid 19 then the other person who had come into contact with him earlier is immediately informed and medical intervention is arranged for him as early as possible.  For registration of the application one needs to have access to a smartphone. After this application was launched, the Central Government and some of the State Governments made it mandatory for people to install this application in order to get the benefits of certain services provided by the governments. It was also made mandatory for travelling purposes. Thus, debates were doing the rounds that this App violates the privacy rights of the people of our country.

 The legality of the Aarogya Setu was challenged by way of a PIL in the Karnataka High Court in the case of Anivar A Aravind v. Ministry of Home Affair and Others[11]. Several issues were raised in the case on the use of response data submitted by the users of the app and also on the question whether the government can transfer the personal data of the users saved in the app without the consent of the users. The petitioner also prayed to the Court to direct the government of India, NIC, and other responsible parties to make the use of the Aarogya Setu app voluntary by the citizens. The court passed an interim order in this case and prohibited the Government of India and National Informatics Centre from sharing the health data of citizens without their informed consent. The sharing of the responses of the users of the app without their consent will be a violation of the right to privacy under Article 21 of the Indian Constitution. While answering the question as to whether the transfer of personal data of the users collected on the application without obtaining the consent of the users violates the right to privacy  under Article 21 of the Indian Constitution or not, the Court relied on the decision given in Justice K.S. Puttaswamy vs. Union of India. In this case a data controller was required to give a simple notice about its information practices to all individuals in clear language so that it was easy for all to understand and this notice was to be given prior to collecting personal information. Secondly a data controller should give individuals the choice to opt in or opt out in the matter of providing personal information and shall take individual consent only after providing notice of its information practices. The High Court of Karnataka in Anivar A Anand’s case thus observed that the informed consent of the user is taken at the time of installation of the Aarogya Setu because the conditions of the application states that a person is put to notice about the terms of the service and privacy policy. The court also considered the Aarogya Setu Data Access and Knowledge sharing protocol and found out that the personal data of users can be shared by NIC with the State Government and other institutions. However the privacy policy of the application does not mention about such sharing and transfer of information. So, the sharing of response data of the citizens by the NIC without their consent is in violation of the right to privacy under Article 21 of the Constitution of India.

Right to Education

The Constitution of India in Article 21A recognises the fundamental right to provide free and compulsory education of all children in the age group of six to fourteen years in such manner as the State may provide.  Internationally also, the right to education has been recognised as a basic human right of all individuals by the Universal Declaration of Human Rights 1948.[12] The Convention on the Rights of Child 1989 also guarantees free and compulsory primary education for all, progressive, free secondary education should be accessible to all and accessibility of higher education. [13]

 In Mohini Jain v. State of Karnataka[14] the Supreme Court observed that the right to education is the essence of the right to life and directly flow and is interlinked with it, and life with dignity can only be assured when there is a significant role of education. The validity of Mohini Jain’s case was upheld in Unni Krishnan vs. State of Andhra Pradesh[15] where the Supreme Court held that the right to education means that the citizens have the right to call up the state to provide the facilities of education to them in accordance to the financial capacity.

Apart from the Constitution of India, the Right to Education Act, 2009 also puts an obligation on the state to provide free and compulsory education to all children in the age group of 6-14 years in a neighbourhood school.

The lockdown which was imposed during the pandemic has adversely affected the right to education. As a result of the nationwide lockdown, which was a relevantly new concept for the people of this country there were closure of all educational institutions all over the country. During the first phase of the lockdown even online classes were not held. It was only after the initial stage of the lockdown that the respective state governments ordered the educational institutions to hold online classes. However online education can never be a suitable alternative to physical classes because of its limitations in a country like India. Online education can be availed of by students who have access to the internet. Also for accessing the internet and logging in to the online classes one needs to have gadgets like the laptop/ computer or a smartphone. Students who live in remote locations in the rural areas who do not have electricity in their homes can only dream of internet accessibility and such gadgets. As a result of this these students were deprived of their right to education during the lockdown.

Though the lockdown was imposed on the grounds of public health and safety and had its own justifications but even after the lockdown was lifted the decision of not reopening or staggered reopening of schools and colleges has had its impact on the education of students. The non enrolment of children in the rural schools in the age group of 6-14 years went up from 2.5% in 2018 to 4.6% in 2021 as per the Annual Status of Education Report 2021.  The school dropout rate in rural India was 37% in 2020-2021 during the pandemic. The School Children’s Online and Offline Survey released in August 2021 revealed that poor children in rural India suffered the most due to disrupted education during the pandemic. As per the survey 51% people in villages have a smartphone as compared to a 77% in urban areas and 15% children study regularly in online mode in rural areas as compared to 31% in cities[16]. This digital divide between rural areas and urban areas has adversely affected the education of children in these areas.

  Loss of continuity in learning, gaps in learning, the problem of unemployment of parents which has forced them to take out their children from private schools due to their high fees and admit them in government schools and in some cases has also resulted in parents to be forced to discontinue the education of their children are some of the ill effects of this pandemic and the lockdown. Even after the reopening of schools children specially those belonging to the primary section were not psychologically ready to resume classes all over again. They had difficulty in communicating with their classmates and teachers. They had lost their fluency in reading and writing.

Thus during such challenging times it is definitely necessary on the part of the State to identify the children who have dropped out of schools and colleges and to ensure that they go back to their schools and colleges. Adequate financial support should be provided to such children and other incentives. In order to deal with the psychological changes that have occurred in children during the lockdown the schools should arrange for frequent counselling sessions of the students and if necessary also for their parents. To ensure that students attend school and college regularly and do not fall sick, proper sanitization of the premises should be done and physical distancing as well as wearing of masks in classrooms and campuses should be ensured.

Other Challenges

1. Violence Against Women- The lockdown during the pandemic saw an increase in matters like domestic violence, child abuse and mental health problems. The lockdown urged people to stay at home to restrict the spread of the virus but this staying at home aggravated the problems of women. Women were required to do more household work and were also subjected to physical torture, sexual and verbal abuse at home. This resulted in severe mental problems in women like depression. The NGO’s working for women’s rights, police personnel, social workers and other such organisations were busy in providing necessary support to the government in covid related matters and so the issues of women remained behind closed doors. They could not reach out to anyone for support and suffered silently. Not only men but women too lost their jobs, were uncertain about their future and to add to their misery were subjected to such brutal treatment at home. The lockdown has also seen a substantial increase in divorce cases. With women not able to bear the trauma of such physical and mental brutality were forced to file suits for divorce. Although India is a party to international human rights conventions like the Universal Declaration of Human Rights 1948 which prohibits any person from being subjected to cruel, inhuman and degrading treatment[17], but during the pandemic these norms have definitely been flouted and  there has been a total inaction on the part of the State to provide appropriate remedy to the aggrieved persons. Laws like the Protection of Women from Domestic Violence Act 2005 which has been brought into force to protect women from domestic violence have not been properly implemented during these challenging times.

1. Child Abuse and Mental Health - The Convention on the Rights of Child 1989 speaks about the various rights of a child. It talks about the right to be protected from all forms of physical or mental violence, injury or abuse or negligent treatment as well as maltreatment and exploitation[18]. The child shall also not be subjected to torture, cruel or inhuman or degrading treatment.

 The lockdown has witnessed problems of unemployment, fear of survival and other related issues in most of the families .With parents losing their jobs and the uncertainty about their future as well as the future of their children resulted in parents and members of the family being over anxious and emotionally tensed. The outcome of such fear and uncertainty caused them to physically abuse their children as a way of venting their emotions. With schools, parks being closed and other outdoor activities being restricted, children’s physical and mental health suffered a lot. A lot of children developed psychological problems and were required to be counselled after the lockdown was lifted.

Not only children but also adults faced a difficult time coping up with the lockdown and the compulsion to stay indoors for several months. The suffering of the people who already had pre-existing mental disorders increased to a greater extent during the lockdown. The loss of lives of near and dear ones, the anxiety caused by the fear of losing jobs, uncertainty about the future , fear about the disease, isolation caused by social distancing norms impacted the mental stability of a lot of people leading to problems like depression, anxiety disorders, suicidal tendencies and also alcohol and drug abuse. The newspapers reported increased number of deaths due to suicide among adolescents as well as adults .While the government was focussing its attention on tackling the rise in covid cases, very little was done by it in these matters which mostly went away unnoticed.  It was only recently after the lifting of the lockdown and the staggered opening of all organisations, institutions and other such places that the Government of India has taken initiatives at the national level for mental health issues and awareness. The union budget for 2022-23 witnessed an announcement by the Finance Minister about a National Tele Mental Health Programme due to the long covid and the coronavirus related ailments remaining ailments in patients long after they recover. A National Digital Health Ecosystem programme would be opened to improve access to quality mental health counselling and care services.[19]

Impact on the Environment

The pandemic has also brought about changes in the environment. In India, the problems of air pollution, water pollution and noise pollution are fairly common. During the pandemic, when the lockdown was announced by our government, several industries and factories were shut down and consequently the industrial waste that is released into the water was also totally stopped. Our major rivers like Ganga and Yamuna also reached a certain level of purity owing to the lockdown.

There was also a decline in noise pollution. The pandemic had impacted the level of air pollution also. Due to the fact that the lockdown resulted in total stoppage of all kinds of vehicular movements except those which were extremely essential like goods trains, trucks there was a substantial reduction in air pollution also. The air pollution caused by vehicular emission was reduced to a great extent. Reports suggested that nearly 50% reduction of nitrogen dioxide and carbon monoxide occurred due to the shutdown of heavy industries. Acid rain caused by the combination of nitrogen dioxide, oxygen and water which causes a lot of respiratory problems was also reduced during this period. The cancellation of a majority of domestic and international flights also decreased the air pollution in the atmosphere[20].

The pandemic was definitely a boon for our environment worldwide but there are always two sides of the same coin.  Covid -19 not only created favourable effects on the environment but also had its share of negative impact on the environment. The pandemic generated a lot of surgical and medical waste all over the globe and thus impacted the environment adversely. The improper disposal of surgical equipments used during the pandemic in hospitals like masks, PPE kits and gloves as well as covid testing kits harmed the environment. As a result of the lockdown the wild animals, plants and birds kept in zoos, sanctuaries, botanical gardens and reserves suffered a lot due to lack of proper care. The increase in unlawful activities like hunting of wild animals, deforestation also increased considerably during the pandemic.

Covid -19 and the Indian Legal System

The outbreak of the Covid 19 has posed a challenge to the legal system of our country. It has revamped the entire structure and the manner of working of the courts as well as the legal professionals. It has impacted the livelihoods of the advocates.

The lockdown not only meant the shutting down of all organisations, institutions, offices and the like but also shutting down of the courts. Like educational institutions and corporate offices, the courts too resorted to the virtual mode of functioning. They started to hear and decide all cases virtually. This was however fraught with difficulties. For those lawyers who were not tech- savvy, the online platform was not an easy one as compared to those who were technology friendly. Such advocates suffered as they had no idea about the working of the virtual platforms. The online hearing of cases can be successfully conducted only if there is a proper internet accessibility and connectivity. Many advocates and clients do not possess the gadgets required to access the internet and also are not economically sound to purchase such equipments as well as to pay for the internet charges. Poor internet connectivity in most areas is an obstacle in the smooth conduct of court proceedings. Another major issue faced by the legal profession was the problem of unemployment of fresh law graduates. All kinds of recruitment had come to a halt during the pandemic and the senior advocates as well as the law firms were not recruiting any fresher. The advocates already employed were facing difficulties in getting new cases and there was a delay in receiving their fees because people were suffering from financial crisis and most clients did not have the option of online payments.

Thus the pandemic brought about a complete change in the legal system of our country. Having said this, it would be pertinent to mention that this change was not totally detrimental to the system because the virtual hearing of cases results in speedy disposal of cases which reduces the pendency of cases in courts. One of the major drawbacks of our legal system is the long pendency of suits. It also reduces the burden of paperwork and the overall cost of the proceedings. There is more transparency in the matters because any person can access the court proceedings from anywhere and at anytime.

The pandemic has posed a great challenge to the entire world and also to India. The entire structure and the usual way our society and its institutions used to function have also changed to a substantial extent. The government has tried in several matters to come up with innovative solutions to such problems but has also been unsuccessful in certain areas. There is certainly a lot of work which the government at the national and the state levels have to do to bring back the society to its older form.

[1] INTERNATIONAL COMMISSION OF JURISTS, https://www.icj.org (last visited March 14, 2023).

[2] art. 12.

[3] AIR 1981 SC 746.

[4]( 1996) 4 SCC 37.

[5] AIR 1989 SC 2039.

[6] (1985) 3 SCC 545.

[7] Nishank Govil, Violation of Article 21 of migrant workers during COVID-19 pandemic, IPLEADERS  (Mar. 14, 2023, 9.10 PM), https://blog.ipleaders.in

[8] AIR 1963 SC 1295.

[9] AIR 2017 SC 4161.

[10] (2019) 3 SCC 39.

[11] WP No 7483 of 2020.

[12] Art. 26.

[13] Art. 28.

[14] (1992) 3 SCC 666.

[15] (1993) 1 SCC 645.

[16] INDIA TODAY, https:// www.indiatoday.in ( last visited Mar. 12, 2023).

[17] Art. 5.

[18] Art. 19.

[19] Srishti Singh Sisodia, India takes huge step forward by announcing mental health initiatives in its budget, WION ( Feb. 2 , 2023, 6: 28 PM), https:// www.wionews.com.

[20] Priyanka Deka, Covid-19 and its impact on environment, THE TIMES OF INDIA READER’S BLOG (Mar. 11, 2023, 10:00 PM), https://www.timesof india.indiatimes.com