Covid-19 pandemic has raised a number of challenges across the globe; practically in different spheres of administration, border crossings, health services, civic behaviour, technology’ diplomacy and so on. Country after country is struggling with the tough choice between saving lives vs saving livelihoods. In a large and diverse country such as India, the challenges are even more complicated, particularly when public health is not a central or even a concurrent subject but purely a state subject.

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India declared a complete nationwide lockdown for a month becoming one of the first democracies in the world to opt for this stringent measure. There was a string of criticism and concerns related to it.

Importance of protection of basic civil rights amidst the present lockdown scenario:

• The post covid-19 world will not be same again.
• Further evidences show that due to increased climate change effects, epidemics and pandemics through various means like Zoonotic diseases is a reality.
• The lockdown, however, does not come without a fair share of problems of its own, the most pertinent is centered around the protection of basic civil rights in this lockdown.
• People at the bottom of the socio-economic pyramid, especially migrant workers have been the worst hit by the lockdown.
• India, with its vast territory, large but extremely diverse population, and low literacy levels, poses a special kind of challenge to a government trying to develop a nationwide solution to tackle the epidemic.
• The reckless disregard to the lockdown by some people and the numerous instances of rumour mongering have been extremely problematic for the administration to maintain law and order across the country.
• This presents an extremely peculiar position where the government, on the one hand, has to ensure the basic civil rights of people, and on the other, has to curb the outbreak of the disease.
• Though it might be too early to call, but from the data available, one can easily deduce that countries which have opted for ‘slightly authoritarian measures’, like Singapore, South Korea and Taiwan, despite their proximity to China have prevailed, while countries like the United States, the United Kingdom, Italy either due to their lax or vacillated approach have succumbed to the virus.
• A cursory inference of this data easily invokes the dogma of whether “desperate times require desperate measures”, meaning whether and to what extent should the government impose restrictions on civil rights to curb the pandemic.
• In such testing times, where the entire scenario can be narrowed down to the equation of liberties vs lives, a hybrid approach that encompasses the spirit of both sides should be applied.
• Drawing the line in such cases, however, becomes an arduous task.
• This implies that while certain fundamental rights, such as the right to religion or the right to expression can be restricted, the restriction in all such cases shall be reasonable and open to judicial scrutiny.
• The recent case of T. Ganesh Kumar vs Union of India captures the essence of this quandary, where the Madras High Court rightly dismissed a petition that sought a ban on newspapers.
• The current law governing during epidemics is the colonial-era Epidemic Diseases Act, 1897, which leaves much to be desired. The four-page long law is dotted with ambiguous and open-ended wording.

The need for a comprehensive law on epidemics arises from the deficiencies in the current laws governing during epidemics:

• The biggest deficiency of the Epidemic Diseases Act, 1897 is its failure to provide an outline of the basic civil rights which the government needs to ensure during the epidemic.
• The act is neither successful in laying out the course of action, nor in describing the rights of the citizens in such a situation.
• That combined with its excessive reliance on Section 188 of the Indian Penal Code (where the maximum punishment is six months’ imprisonment or a thousand rupees) for penal punishment in cases of violation, presents an extremely haphazard state of affairs.
• The effect of these shortcomings in the statute is also indicated in several states invoking the National Security Act (NSA) against people who violated the lockdown norms and potentially, put others in harm’s way.
• However, maintaining the charges of NSA, within the courtroom can be extremely challenging. The Supreme Court in the case of Vikram Singh vs Union of India has held that the punishment must be proportionate to the offence committed, and conviction under an act like NSA requires an exceptionally high level of threshold.

Way forward:

• The best remedy to successfully tackle the current epidemic and prepare for the future lies in modifying or rather creating a comprehensive legislation that specializes in dealing with such cases.
• A law that provides a detailed road map of the course of action and a clear demarcation between rights and liberties; the ones that may be restricted by the State and the ones that cannot be restricted.
• Swiss law model:
  • Quite like the recent Ordinance on Measures to Combat the Coronavirus (Covid-19 Ordinance 2) promulgated by The Swiss Federal Council that has been enacted to take steps to contain spread of the disease.
  • It helps mobilize the capacities required to manage the epidemic, particularly to maintain the conditions required to provide the population with adequate care and a sufficient supply of therapeutic products.
  • The Ordinance has specific provisions for border crossings, export controls for protective equipment, provisions for health care and also measures that apply to population, organizations and institutions.
  • The Swiss Federal Council Ordinance also provides for a three-year jail term for violators. It would do India well to have a comprehensive health epidemic legislation for the country.