Do we lose our basic rights because there is a pandemic?

IN PERSPECTIVE

The Government of India and various state governments have been taking or trying to take some drastic measures in order to deal with the Covid-19 pandemic and to mitigate the consequences of their own responses to the pandemic. The Centre mandated public sector and private sector employees to compulsorily download the controversial Aarogya Setu app, which was saddled with serious privacy concerns, but has since moderated its position. Several state governments have suspended labour laws for varying durations, which severely compromises the rights of workers. Quite brazenly, the Karnataka government tried to restrain migrant workers from going home in order to facilitate economic activities in the state. The Centre has suspended the MPLADS funds for 2020-21 and 2021-22, which will have repercussions on local development initiatives. The Kerala government sought to cut one month’s salary of its employees. In a circular which was subsequently withdrawn, the Tamil Nadu government asked 47 temples under the control of the state government to contribute to the Chief Minister’s Relief Fund. The central government wants to have total control over the reporting of Covid-19 by the media.

While these measures correspond directly with the pandemic, the State has not stopped its usual assault on dissent. Many of these decisions have been unilateral, without any kind of consultative exercise across the political spectrum.

Pressing concerns

While many of the measures may appear temporary, the implications of these measures can linger for a long time and establish troubling precedents. The pandemic has likely changed the fundamental idea of a workplace. It has also required the world to re-evaluate how we interact with nature. In this context, we need to ask if this pandemic justifies a fundamental shift in the State-people relationship? To what extent does the State get to alter its relationship with people? To what extent are our basic rights up in the air because we are fighting a pandemic? Is there a legitimate explanation for an expansion of the State’s authority over its people? These questions are important because these measures might just well be the beginning. If the pandemic continues and a vaccine is not found or delayed, the State is likely to assert much greater authority than it already does.

Fundamental task

There is no doubt that the Covid-19 pandemic is unlike anything that any one of us have witnessed in our lifetimes. The closest parallel is with the Spanish flu of 1918. While the situation is unusual, the function that the State is expected to perform is not.

Preserving the lives of its people is the most basic function that the State is required to perform. It is the first and the most non-negotiable aspect of any social contract theory through which the existence of the State is legitimised. Without the ability to protects its people, there is no reason for the State to exist and in order to protect its people, the State already has been vested with as much power as required. It does not need more power to do the most fundamental thing it was created to do.

This does not mean that people won’t have to adjust to new restrictions. The nature of this pandemic means that keeping the world safe will require compromises in the exercise of our rights. However, such restraints are already conceptualised into the formulation of our rights. For example, the right to freedom of religion is subject to public order, morality and health. Freedom of movement can be restricted in the interest of the general public and for the protection of the interests of Scheduled Tribe. The right to equality does not disempower the State from implementing affirmative action in favour of marginalised communities. Even our right to life and liberty can be curtailed by laws that are just, fair and reasonable. Thus, the State already has sufficient modalities in its hands to formulate the adjustments which may be necessary to deal with the pandemic.

Trust and questions

While the State might prefer unquestioned loyalty and obedience to all that it does, the magnitude of the crisis means that we should be asking more questions, and not fewer. The pandemic has triggered a surge in public trust toward governments across the world. It has also been argued that public trust in the government allows countries to tackle the pandemic better.

Both these things reflect the reality that the State is the only institution capable of dealing with such a huge crisis. However, there is a difference between reposing trust and reposing trust blindly. As people across the world are discovering, the pandemic has not stopped the abuse of power by leaders. The biggest crisis in a century is precisely the time when the State has to be more answerable than it ever has been. It should explain why it is not releasing meaningful data on testing. It needs to explain the lack of consultative process which has turned the lives of migrant workers into a hell. The central and state governments need to account for each of their decisions.

The state must protect its people and it must do so without violating the terms of the social contract through which it was created. The Covid-19 pandemic demands that the State discharge its most fundamental obligation to the people -- preservation of life. In order to do that, it can’t ask us to choose between our rights and our lives.

(The writer is faculty at National Law University Odisha and has recently completed his Fulbright Post-Doctoral Fellowship from Harvard Law School)