June 4, 2020

ARTICLE 21: THE SCOPE DURING THE PRESENT CRISES

ISHAN JAIN

The whole world is going through an unprecedented crisis arising due to COVID 19 pandemic whose impact is unimaginable and unfathomable but is real. The assessment of its impact on various aspects of life can at best be ascertained on tested lines but those lines themselves are under threat of being too clichéd. The absence of the vaccine had forced a lockdown by restricting the mobility and closing down all other activities barring few essentials and that seemed to be the only solution so as to minimise the transmission. However, the continued lockdown for an indefinite period of time is not only impractical but would also take the economy in continued hibernation by further aggravating the hardships. The lockdown has already led the economy into the quagmire.

When it comes to people who have employed the conundrum of retaining their jobs vis-a-vis preventing themselves from the virus would be highlighted in a big way. The lifting of certain restrictions has also led to the opening of offices impregnated with safety measures. The said opening of offices also now exposes the said employees to the virus and thereby multiplying the transmission. The graph of COVID affected patients have gone up considerably ever since relaxations have been put in place. The question, however, is given the condition of poor health care and limited availability of resources at the hospitals combined with the fact that there is no clear treatment of COVID and the ability of the virus to multiply its victim, can government acting as the employer of non-essential nature force its employees to join duties?

The government is State within Article 12 of the Constitution of India and thus fundamental rights can be enforced against them. Put it in other words, there is a duty on the government to protect the fundamental rights of its subjects. In this unprecedented situation, the government may aptly justify lack of resources to provide proper health care and conducive environment and thereby limit the whole application and import of Fundamental Rights. The Courts also would be slow to burden the government with directing them to do anything which may allow the Government to raise the bogey of encroaching on the policy matters. Therefore once the authority on whom there is a duty to not take away Fundamental rights of its citizens (and persons under Article 21) plead lack of resources and limit the enforcement of Fundamental Rights, force its employees to join duties?

The issue of the exercise of the right to life and the corresponding duty of State has been at the heart of the discussion of the existence of the modern state system. The emphasis and recognition of certain inalienable rights of people have greatly influenced the evolution of State in the present state. The duty on the part of State to protect these rights not only accords legitimacy to the regime, it nevertheless, but is also the very logic behind the existence of State. Any aggressive onslaught on these rights is not taken lightly but gives reasons to people to revolt. It brings us to a poignant question as to whether the intervention of the government to oblige the people to come out and face the acknowledged risk of vulnerabilities and risks associated with pandemic and whether such measures quality the procedure to be just and fair as reading into Article 21

In the present scenario when the government in the interest of the people thought it fit to suspend everything for almost 2 months cannot suddenly direct atleast its employees to now resume duties especially when the situation as on today is far more tragic and risky than it was on 23.03.2020 i.e. the day on which lockdown was announced. The employees now run the risk of their and their family’s lives as the probability of catching the virus multiplies. Further, once the State already acknowledges that risks exist and that resources at least in terms of healthcare are limited then the persons/employees must also be given a corresponding right to refuse to be exposed to such risks i.e. a decline in the magnitude of duty to be performed must also lead to proportionate extra protection of the right itself. This would lead to the enjoyment of the right itself keeping in mind the limitations of the State. The question then arises as to how this is to be implemented in the current scenario?

The unprecedented crisis seeks extraordinary solutions. The primacy of the right to life is utmost in any situation and must be protected if the same can be at the expense of available resources. The extent of the power exercised by the government must be in the direction to hamper the right to life as minimum as possible.

The employees of the State must be protected of their employment in a sense that they ought to be given an option to be on “no work, no pay” mode without any threat to their employment. This would mean that all those employees who can survive without a salary for a few more months would very well stay at home. They would always have an option to go to their job and resume work however the same would not be forced. If the Government allows its employees to remain on no work, no pay method without threat to their employment, then in the long run Right to the livelihood of the employees is protected without risking the lives of the employees and their families. This would lend fairness and reasonableness to the procedure of law mentioned in Article 21 of the Constitution of India.  Hon’ble SC of India has held in Olga Tellis & Ors vs Bombay Municipal Corporation  1986 AIR SC 180 that right to livelihood is part of Article 21 of the Constitution of India.

 

 

                     (The views expressed by the author are personal)