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The world has faced many tragedies over time, but some of this had a lasting impact on society, such as the Great Plague of London (1665-1666), Russian plague (1770-1772), Philadelphia yellow fever epidemic (1793), Spanish Flu (1918- 1920), H1N1 Swine Flu pandemic (2009-2010), West African Ebola epidemic (2014-2016).

Today we are facing another pandemic known as Covid-19. This virus first came into the limelight when China confirmed the spread of the disease to the World Health Organization (WHO) on December 31st, 2019. The outbreak originated in the Wuhan City of China and subsequently spread to the rest of the world. WHO declared the outbreak of coronavirus as a Pandemic on March 11th, 2020. Since then, the pandemic has raised several intriguing concerns about global medical preparation to governments presumed unrestricted rights to limit the spread of the coronavirus and the Rights of citizens.

Impact Of Covid-19 On Fundamental Rights:

Everyone is affected by the COVID-19 epidemic. Governments had to take immediate action to halt its spread to protect public health and provide medical care to those who need it. They are trying to protect the human rights of health and life itself but at the cost of other Fundamental Rights such as Freedom of Movement of migrant workers. Covid 19 continues to affect social rights of access to education and healthcare.

Michael O’Flaherty, Director of the European Union (EU) Agency for Fundamental Rights, says we can save lives during pandemics without sacrificing Human Rights. It is not a zero-sum game. The more we respect human rights, the better will be our public health strategies.[1]

The analysis of provisions in the international covenant and guidelines issued by the EU or Venice Commission Report of 2020 all reveal that basic Human Rights cannot be curtailed under any circumstance because they form the very essence of our existence, democracy, and the rule of law.

Right To Health:

The relevance of the Right to health as a Fundamental Right (FR) in India is once again highlighted by Covid-19. If designated a Fundamental Right, the Right to health would cover a wide range of issues, including the Right to a sufficient amount of water, food, and nutrition and the Right to Know about and access knowledge about improved health options. In this case, the courts could also interpret and execute the Right under Articles 32 and 226 of the Constitution of India. It will be empowered to impose requirements and rules on both state and non-state actors and determine and attach duties to the Indian people. It will ensure transparency and accountability in the health industry. Not only that but with the declaration of the Right to health as a Fundamental Right, there will be a defined structure for fund allotment to the healthcare system. The government will consider and pay heed to the Supreme Court’s statement that financial difficulties cannot stand in the way of making medical facilities available to the people, as laid out in the landmark Navtej Singh Johar[2] decision. Thus, by enacting the much-anticipated National Health Policy, the legal and sociological, and psychological aspects of the health sector would be addressed.

Freedom of Movement:

It is reasonable to conclude in the light of the argument raised that the executive has the power to curtail the Fundamental Rights to a certain extent in the pandemic; however, the constitution and law are not just the tools for peacetime. This government has not yet endeavoured on this path. Nonetheless, if it does, the principle of necessity does not override the basic human and fundamental rights, which is axiomatic in the judgment delivered by the Kerala High Court on April 1st, 2020. In the case of Kerala High Court Advocates’ Association v. The State of Kerala and Ors.[3] the court held that the Fundamental Right of a citizen to move freely throughout the territory of India under Article 19(1)(d) and the Fundamental Right to life and personal liberty under Article 21 would be infringed in case a resident of Kerala is denied entry into Karnataka for availing medical treatment or is deprived of essential articles of food that are being transported into Kerala.

Jail and criminals:

As the High Courts are empowered in this regard, numerous High Courts in India have given parole to convicts who have not been convicted of a serious crime and have been imprisoned for less than seven years. However, if the offenders have been released and the lockdowns continue, this may have an impact on the bail provisions in the case. They will probably try to avoid arrest after the lockdown, and the prosecution, which is already dealing with the fallout from the lockdown, will have to bear the brunt of this new unjustified circumstance. At the same time, if these convicts are not given parole, it would violate their Right to health and life itself since prisons lack the proper medical facilities, and covid 19 can spread quickly in prison since they are overcrowded.

Unfettered Powers Presumed by The Government:

As the Covid-19 outbreak spreads, governments worldwide are taking extraordinary actions in the name of their offices. Few governments are using this for personal or political advantages. In Hungary, the approved Coronavirus Protection Bill gives Prime Minister Viktor Orbán the Right to rule by decree for an indefinite period of time.[4] In addition, another superpower, Russia, has issued a ruling allowing President Vladimir Putin to extend his tenure in office. In Serbia, President Aleksandar Vui declared a state of emergency without consulting the national assembly to secure broad powers to restrict human and minority rights. Pandemics frequently provide an opportunity for the administration to abuse their powers because they are not subject to oversight. This threat might range from undesired intrusion into one’s personal life to constitutional duties being superseded. In response, the Board of the EU-Russia Civil Society Forum has asked governments to defend essential democratic institutions and procedures that guarantee the rule of law in order to combat the pandemic.

On March 16th, 2020, UN Human Rights experts said, “emergency declarations based on the COVID-19 should not function as a cover for repressive action under the guise of protecting health.”[5]

Other legal Challenges:

“The legal establishment is “no longer at ease here, in the old dispensation” – it has witnessed the birth of new ways of doing things and the death of the old order.”

T. S. Eliot[6]

Documentary evidence:

Section 207, when read together with Section 294, mandates that the defendant be presented with all records preserved by the prosecution and that the defendant must either dispute or acknowledge the authenticity of each record. The Supreme Court concluded in Shamsher Singh v. State of Haryana, which dealt with Section 294, that it is required to check the truth of papers produced by either the prosecution or the defense. The question today is whether such authentication processes can be carried out over virtual proceedings, implying that digital record upload mechanisms are used. Softcopy records, on the other hand, frequently generate trust concerns because they may be easily corrupted without causing an iota of doubt.

Criminal Law:

Other legal implications can be seen in criminal matters, as sections 269 and 270 of the Indian Penal Code, 1860 (IPC) are invoked when problems related to the pandemic arise, and section 188 of the same code is attracted when the District Magistrate invokes section 144 of the Code of Criminal Procedure, 1973 (CrPC) on the direction of the State Government. “According to the Delhi Police, which has filed FIRs under the Delhi Police Act against 66,000 people for breaking the Coronavirus Lockdown. 3350 FIRs have been filed under IPC Section 188, and 10,000 vehicles have been impounded.” Though no action has yet been taken against the violators, section 195 of the CrPC may be the reason for this, as it prohibits the courts from taking direct cognizance of the matter unless the public servant concerned or another public servant to whom he is administratively subordinate files a complaint in writing.

Civil Law:

There are numerous legal ramifications of this epidemic, particularly in the commercial sector, where the “doctrine of Force Majeure” and “doctrine of frustration” may become focal points, as the former pertains to section 32 and the latter to section 56 of the Indian Contract Act, 1872. Because of this, courts may be confronted with a slew of cases following the lifting of the lockdown, and the government has the option of establishing special courts to deal with these types of matters.

Vulnerability of the witness:

The testimony of the witnesses serves as evidence for both the prosecution and the defense. In the State of Kerala v. Rasheed,[7] the Supreme Court ruled that it should be assured that the witness is free from the accused/complainant/prosecution’s influence and coercion. It would be difficult for a judge to maintain a free environment for the witness. Threatening or coercing witnesses is not uncommon in India; it could result in the suspect going free or an innocent person being convicted. The judiciary has yet to resolve this, which simply serves to exacerbate the problem by exposing the witness to undue influence.

Section 273 of CrPC mandates that the evidence must be recorded in the presence of the accused/defense counsel. The purpose of this section is to establish proper interaction between the prosecuting counsel and the witness or to decide if the witness behaves appropriately. An interaction of this nature lets the magistrate assess the operation of Section 28. Properly, in which the magistrate is expected to report the witness’s demeanor during the evidence process. If such interaction is conducted virtually, then physical behavior or the witness’s demeanor cannot be adequately analyzed.

Social Impact:

Domestic Violence:

Covid-19 fan the flames in the direction of Domestic Violence. The country, which did not have a clear statute for domestic violence until 2005, is now seeking to put out the fire. The outbreak prompted governments all across the world to adopt drastic measures, such as a complete lockdown. There was an immediate spike in domestic violence complaints following the lockdown.

According to Rekha Sharma, chief of the National Commission for Women, the atrocities and gender-based violence have materially augmented since the lockdown was announced. According to the NCW data, 25,886 complaints of crime against women have been received from April 2020, which includes 5,865 domestic violence complaints. Also, the NCW received the highest number of complaints against women in six years in 2020 at 23,722, with nearly one-fourth of them of domestic violence.[8] The rise in domestic abuse cases drew the attention of the United Nations, and Secretary-General António Guterres replied by encouraging “governments across countries to put women’s safety first as they confront the pandemic.”

Domestic violence directly affects the physical and mental health of a person involved, and the Right to Health covers these effects. Because the Right to life encompasses the Right to live in dignity and the Right to health, it falls under the purview of Article 21 of the Constitution of India. It was a foreseen consequence of the measure of home isolation, and governments should have addressed the issue sooner rather than later, as evidenced by the release of the Manuscript of the European Union Agency for Fundamental Rights, 2020, which discussed domestic violence as one of the pandemic’s aspects in the guidelines. Later on, countries began to establish helpline numbers in order to avoid misuse. However, in a country like India, where broken families are stigmatized, the fight appears unjustified. Recovering from the pandemic of domestic abuse in a country where patriarchy is in the people’s blood will be as difficult as recovering from the Covid-19 pandemic.

Conclusion:

Once Covid 19 pandemic is over, the judiciary will be the hotspot of pending cases. Enforcement agencies that are already overburdened with the investigation work might find it difficult to enforce the court orders properly. The establishment of special courts to deal with cases according to their subject might help the judiciary to have speedy disposal of cases. Government must address the issues of domestic violence by establishing proper helplines or institutions like “Disha Centers,” which were established by the Andhra-Pradesh Government and improving medical facilities in places like prisons, so there is a safe place for the convicts and undertrial who are in judicial custody instead of granting parole to these offenders or accused. Government must rethink the Right to health and bring necessary amendments to civil and criminal law to deal with changing circumstances in society.


[1] European Union Agency for Fundamental Rights, protect human rights and public health in fighting COVID-19 (2021), https://fra.europa.eu/en/news/2020/protect-human-rights-and-public-health-fighting-covid-19 (last visited Jul 2, 2021).

[2]   W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016.

[3]  Livelaw.in (2021), https://www.livelaw.in/pdf_upload/pdf_upload-372019.pdf (last visited Jul 2, 2021).

[4]   Hungary Ignores Calls for Respect of Human Rights – Civil Rights Defenders, Civil Rights Defenders (2021), https://crd.org/2020/04/07/hungary-ignores-calls-for-respect-of-human-rights (last visited Jul 2, 2021). 

[5] Human Rights Dimensions of COVID-19 Response, Human Rights Watch (2021), https://www.hrw.org/news/2020/03/19/human-rights-dimensions-covid-19-response (last visited Jul 2, 2021).

[6] T. S Eliot & E. McKnight Kauffer, Journey of the magi (1927).

[7]  State of Kerala v. Rasheed, (2019) 13 SCC 297

[8]  Akshaya Krishnakumar & Shankey Verma, Understanding Domestic Violence in India During COVID-19: a Routine Activity Approach, 16 Asian Journal of Criminology 19-35 (2021).