QUARANTINE: EXTREME MEASURES VS INDIVIDUAL RIGHTS

QUARANTINE: EXTREME MEASURES VS INDIVIDUAL RIGHTS

khushbu jain, Advocate- Supreme Court of India

Lockdown: isn’t it violation of individual rights? The balance between the individual rights and public safety is always an ever- changing equation, entailing a tradeoff between some of our freedoms with a greater public good. Desperate times require desperate measures. For a person to exercise his rights and freedoms, he shall be subject to such limitations as determined by law so as to secure due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. And these provisions will be applicable when a situation constitutes a threat to the life of the nation and hence enables authorities to derogate.

Right to life as guaranteed under article 21 of the Indian Constitution also includes the right to health and it’s a duty of the State to protect the health and wellbeing of its people. The right to health also has its reference in Article 38 – Social Order to promote the welfare of the people.

The state is empowered to abrogate fundamental rights and some of the Human rights in certain exigencies. Epidemics involve unprecedented measures by the state and its instrumentalities which severely affect and restrict rights, freedoms and remedies available under democratic constitutions. The real test is the reasonableness of the measures and their nexus with the object of preventing substantial harm to a large populace.

Following the outbreak of an epidemic, the Epidemic Diseases Act, 1897 provides for wide ranging powers to take specific measures including but not limited to exercise of quarantine.

What is quarantine: A fight against transmission of communicable and epidemic diseases is dependent upon breaking the chain of infections. Quarantine has proved to be a historically and scientifically effective means to combat such spread.
The WHO defines quarantine as –
‘Quarantine of persons is the restriction of activities or separation of persons who are not ill, but who may have been exposed to an infectious agent or disease, with the objective of monitoring symptoms and early detection of cases. Quarantine is different from isolation, which is the separation of ill or infected persons from others, so as to prevent the spread of infection or contamination.’
(Quarantine is included within the legal framework of the International Health Regulations (2005) esp Art 30, 31 and 32)
Thus quarantine entails restrictive measures applicable to otherwise healthy and normal individuals, thus affecting their rights.

Legal Provisions
Any exception to fundamental rights or human rights needs to have a strong justification in law. Various lesser used and rarely known instruments of law and enabling provisions are invoked and enforced to deal with epidemics and public health emergencies of such large scale as COVID19.

It would be worthwhile to examine the limits and contours of such an action in light of international covenants, instruments and domestic legal provisions.

The International Covenant on Civil and Political Rights:
India being signatory to the treaty – The International Covenant on Civil and Political Rights (‘ICCPR’)  is legally bound to follow the same. The provisions of treaty specifically provides for the state to take derogation measures when faced with a situation of exceptional and actual or imminent danger which threatens the life of the nation. And threat to life of the nation is one that affects the whole of the population and either the whole or part of the territory of the State.
International Covenant on Economic, Social and Cultural Rights: International Covenant on Economic, Social and Cultural Rights (ICESCR), which in Article 12 guarantees “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”, including steps to be taken necessary for the “prevention, treatment and control of epidemic, endemic, occupational and other diseases”. The Committee on Economic, Social and Cultural Rights (CESCR) – the UN body tasked with monitoring implementation of the ICESCR – has spelled out in detail states’ duties flowing from this right. As per the Committee, “Measures to prevent, treat and control epidemic and endemic diseases” are “obligations of comparable priority” to core obligations (or “the minimum, essential levels”) of the right to health. The Committee has stated that a state party cannot, under any circumstances justify its non-compliance with its core obligations, “which are nonderogable”.

According to the ‘Siracusa Principles on the Limitation and Derogation of Provisions’ in the International Covenant on Civil and Political Rights Annex, UN Doc E/CN.4/1984/4 (1984):

iv. “public health”
25. Public health may be invoked as a ground for limiting certain rights in order to allow a state to take measures dealing with a serious threat to the health of the population or individual members of the population. These measures must be specifically aimed at preventing disease or injury or providing care for the sick and injured.

On 30th January, 2020 World Health Organisation (WHO) declared COVID-19 as a public health emergency and on 11th March, 2010 declared it as pandemic. Following the WHO’S announcement, the Union Cabinet Secretary  directed all States and Union Territories to invoke Section 2 of the Epidemic Diseases Act,1897.

Epidemic Diseases Act,1897
The objective of the Epidemic Diseases Act, 1897 is to provide for better prevention of the spread of dangerous epidemic diseases. It empowers the state governments and the central government to take measures as may be warranted or necessary to control the further spread of disease.  Thus, any state government, when satisfied that any part of its territory is threatened with an outbreak of a dangerous disease, may adopt or authorize all measures, including quarantine, to prevent the outbreak of the disease.

It is not the first time that such measures are taken or such provisions are invoked. In 2014, with respect to ‘Ebola’ – the Health Ministry authorised the authorities to screen the travelers who originate or transit through the affected nations and track them after their arrival in India. Their mandatory self- reporting was required at the time of immigration. Surveillance to track these travelers four weeks after the arrival was set-up by the government/ authority. Six (6) Indians who returned from Liberia were kept in isolation.

Specific Orders, their scope and examples
Compared to some of the other social rights, the right to health has been articulated and recognized as an integral part of the Right to Life and its duty of the State to protect its citizens from any such infringement/ violation.
The Right to Health includes the “prevention, treatment and control of epidemic, endemic, occupational and other diseases”. In the context of a spreading epidemic, this includes the obligation on states to ensure that preventive care, goods, services and information is available and accessible to all persons.

Addressing the serious threat Society is facing presently to the society in the country due to pandemic disease of COVID-19, it has become necessary for the State Government to issue necessary circulars/directives to the various authorities to take necessary measures, by public notice prescribing such temporary regulations as necessary to be observed by the public or by any person or class of persons, area specific for prevention of the outbreak or spread of such disease.

Starting from advisory issued by the Ministry of Health, Government of India’s advisory of Social Distancing.

This measure was then followed with other notifications/ advisories such as Closure of all educational establishments (schools, universities etc), gyms, museums, cultural and social centres, swimming pools and theatres, recreation parks, weekly bazaars, restricting state transport, shutting all tourist destinations, no social, religious or ritualistic events shall be held at any public/community/religious place involving a gathering of more than 4 people, suspension of inter-state transport, 100% quarantine for all visitors, operationalized 100% checking of passengers, all religious leaders are being advised to suspend all religious gatherings among others.

The Central Government issued a notification on 13th March, 2020 adding protective goods such as hand sanitizers, masks to the list of essential commodities.
Aggrieved by the non-availability of hand sanitizers and face masks in the market and its profiteering, amid increased demand for the products, in the wake of Corona Virus disease, a writ petition being WP(C).No.8260 OF 2020(S) is also filed in the hon’ble High Court of Kerala and hon’ble court vide order dated 18th March, 2020 issued directions to the state for availability of such essential items. A report by a local NGO, the Society for Community Organization (SoCO), noted that nearly 70% of low-income families in Hong Kong cannot afford to buy protective equipment, including masks and disinfectant.

The Indian Courts have also issued circulars restricting the number of hearings per day (urgent matters only) and some courts including Karnataka High Courts asking Advocates/parties to appear digitally via Skype/video to represent cases.

Considering the gravity of the situation the government is issuing circulars/ notifications almost every day including restrictions under Section 144 of Cr.P.C imposing curfew in various Districts by the concerned District Magistrates.

The hon’ble Allahabad High Court on 18 March, 2020 in Writ Petition – C No. – 7014 of 2020 (Darpan Sahu vs State of U.P. & Ors.) issued directions that the District Magistrates of every district of the State and other Government Agencies and authorities not to take coercive measures or any exercise against any individual or body of individuals which may force them to approach the Courts for legal remedies and also to avoid any public gathering pursuant to any such proceedings like auction etc.

However, the reasonability of the restrictions and their nexus with the purpose of mitigating an emergent threat, of existential nature is a justiciable issue. And therefore:
The extent of prohibitions should proportionally relate to the harm being prevented.
These restrictions cannot be discriminatory.
Restrictions can be for a lawful purpose, in a lawful manner, cannot be arbitrary.
Hence people can question the rationale and extent of restrictions imposed.

Looking at the sensitivity of the issue and the measures taken by the state governments by formulating acts, guidelines, issuing notification, has been challenged in Court. The Hon’ble High Court of Jammu and Kashmir in WP(C) PIL No.4/2020 (through Video Conferencing from Srinagar Wing) vide order dated 20th March, 2020 after receiving replies of all the concerned departments was of the opinion that the Government of Union Territory of Jammu and Kashmir is sensitive to the seriousness and the urgency of the matter and is addressing the issue from every aspect possible.

Infractions and punishments for violation of orders

It is incumbent upon individuals and society at large to follow the instructions issued, in letter and spirit. Any violation of these can lead to potentially devastating consequences in terms of disease transmission, adverse health and safety ramifications for other vulnerable individuals. Thus the probable harm, which is intended to be prevented is disproportionately larger than the individual infractions. It should be clearly borne in mind that breaking an order of quarantine or isolation can result in misdemeanor criminal charges. Apart from the Epidemic Diseases Act, 1897, Following are the IPC sections that an individual can be booked under, who do not comply with the law / regulatory orders related to curb COVID-19 (nCOV19).

Section 188 of Indian Penal Code, 1860:
Violation of order promulgated by Government. Also invoked in violation of the Epidemic Diseases Act, 1897.
Punishment: imprisonment ranging from one month to six months or with fine which may extend to two hundred rupees to one thousand rupees, or with both.

Section 269 of Indian Penal Code, 1860:
Negligently doing any act known to be likely to spread infection of any disease dangerous to life.
Punishment: Imprisonment for 6 months or fine, or both.

Section 270 of Indian Penal Code, 1860:
Malignantly doing any act known to be likely to spread infection of any disease dangerous to life.
Punishment: Imprisonment for 2 years, or fine, or both.

Section 271 of Indian Penal Code, 1860:
Knowingly disobeying any quarantine rule.
Punishment: Imprisonment for 6 months, or fine, or both.

It’s not just India but other nations as well which are implementing penal provisions for violation, for example Saudi Arabia is imposing a fine upto $2,33,000. Italy imposing a fine EUR 206 or jail term of 3 months if people leave quarantine zones.

Safeguards against arbitrary action or an overreach

The use of quarantine may conflict with civil liberties. The citizens have the right to due process of law and thus the imposition of quarantine must be in accordance with law. Restrictions can be for a lawful purpose, in a lawful manner, they cannot be arbitrary, hence these provisions have the safeguard of appeals against actions of authorities, they also have leeway for exemptions citing specific exigencies. In case of an aggrieved person, the recourse to normal legal means and measures is not barred, any person can move to the appropriate legal forum for relief.

While the extreme legal provisions provide for a leeway by way of appeals, there is also saving of action taken in good faith by officials and authorities while performing functions to the discharge of which the State has obliged them.
It is noteworthy that there are protections inherent in law for any actions taken in good faith for authorities acting under the colour of duty or discharging a lawful duty.
Thus under the Epidemic Disease Act, 1897 – Act No. 3 of 1897 Section 4, due protection has been provided for, it reads thus:
“Protection to persons acting under Act. No suit or other legal proceeding shall lie against any person for anything done or in good faith intended to be done under this Act.”

The Epidemic Disease Act, 1897 was invoked in 1900 during Plague and the hon’ble Calcutta High Court in case of Ram Lall Mistry vs R.T. Greer (1904) ILR 31 Cal 829 vide its order dated 13 June, 1904 held that no suit or other legal proceeding shall lie against any person for anything done, or in good faith intended to be done, under this Act.” It is plain that the provision in Section 4 of the Act is intended in the first place to protect a person in the position of enforcement against liability for irregularities that may occur in the proper performance of his duties under the Act.

Summary and conclusion:

In wake of Covid-19 that originated in Wuhan, China and has so far spread to almost 190 countries and a complete or partial lockdown now seen in 25 states/Union Territories is unprecedented and due to paucity of medicine and vaccine to cure the virus, it is extremely imperative that people follow advisories and appeals being issued by the government and authorities. There is going to be unprecedented strain on medical services leading to a shortage of beds, ventilators and life saving medications. This can be mitigated only through widespread control measures warranted under Epidemic diseases act and other such extreme provisions.

The Prime Minister’s appeal for ‘Janta Curfew’ has elicited an overwhelming response from a majority of Indians, however it is only the starting point of a long and arduous battle ahead, which authorities and people have to fight together and win. Quarantine is extreme and extremely restrictive and definitely needs the people in lockdown to be honest and cooperative. The need of the hour is courage, tenacity and resilience among the people, with strict implementation of law for violators.

About the Author
Khushbu jain is practicing advocate of Supreme Court and founding partner of ARK Legal.
Her area of expertise is litigation practice pertaining to corporate, information technology, and crime. Ms. Jain is a recognized name in the field of cyber security and financial crimes involving technologies. She is a regular speaker at various forums and is also a trainer with international bodies and few state govt. initiatives for creating awareness on cybercrimes and understanding of information technology laws among others.