Analysis: Quarantine v. Personal liberty

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“Life without liberty is like a body without spirit.” – Kahlil Gibran

The right to life and personal liberty is most fundamental of all our rights and gives meaning to our very existence.  Everyone comes into the world with a right to his person which includes the liberty of moving and using it at his own will. This Fundamental Right is guaranteed under Article 21 of the Constitution, which states “No person shall be deprived of his life or personal liberty except according to a procedure established by law.”

According to A.V.Dicey, “Personal liberty, as understood in English law, means in substance a person’s right not to be subjected to imprisonment, arrest, or other physical coercion in any manner that does not admit of legal justification”

 Bhagwati, J., said Article 21 “embodies a constitutional value of supreme importance in a democratic society.”

Being the most progressive provision of our Constitution, this right has been held to be the heart of the Constitution.  It is the only Article that has received the widest possible interpretation to include various rights like Right to Dignity of Life, Right to Travel, Right to Privacy, etc. The Constitution has made the judicial process as the protector of personal liberties. 

Maneka Gandhi v. Union of India: The right to live is not merely a physical right but includes within its ambit the right to live with human dignity. Personal liberty makes for the worth of the human being and travel makes liberty worthwhile. 

A.K.Gopalan v. State of Madras:  The ‘personal liberty’ in Art.21 primarily means the freedom from any kind of physical restraint or coercion, including arrest and detention, which essentially consists in the freedom of movement and locomotion. It also includes a bundle of several other positive rights, such as the right to eat, drink, sleep, work, etc., which would go to make up a man’s liberty.

Kharak Singh v. the State of U.P.: The term “life” means more than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed.

D.B.M. Patnaik v. A.P.: Even a convict is entitled to the precious right guaranteed by Article 21, he shall not be deprived of his life or personal liberty except according to the procedure established by law.

COVID-19 quarantine

In December 2019, a novel Coronavirus known as SARS-CoV-2 was first detected in Wuhan, People’s Republic of China. It caused an outbreak of the Coronavirus disease (COVID-19) which has now spread globally.

The World Health Organization determined that the outbreak of COVID-19 constitutes a Public Health Emergency of International Concern in January and on March 11, 2020, it announced the COVID-19 as a Pandemic.

To prevent the introduction of the disease to new areas and to reduce human-to-human transmission, many countries have taken multiple public health measures such as Quarantine and total Lockdown.  By the United Nations Charter and International law principles, Member states have the sovereign right to implement their health policies, even if this involves the restriction of movement of individuals. Article 3 of the International Health Regulations, 2005 specifies rules for implementation of quarantine, ensuring it to be respectful of the dignity, human rights and fundamental freedoms of persons.

Quarantine involves the restriction of movement, or separation from the rest of the population, of healthy persons who may have been exposed to the virus, with the objective of monitoring their symptoms and ensuring early detection of cases. Persons who are quarantined need to be provided with health care; financial, social and psychosocial support; and basic needs, including food, water, and other essentials.

The global containment strategy includes the rapid identification of laboratory-confirmed cases and their isolation and management either in a medical facility or at home. WHO recommends that contacts of a COVID-19 positive patient be quarantined for 14 days. 

Constitutional validity of Quarantine

All citizens of India have a Fundamental Right  “to assemble peaceably” and “to move freely throughout the territory of India”, guaranteed under Article 19(1) (b) and 19(1) (d), respectively.

Quarantine being a limitation on free movement and assembly prima facie violates this fundamental right. However, Article 19 (3) says “Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order”. Similarly, Article 19(5) gives the state power to make such laws in the interest of the general public.

Moreover, Public Health and sanitation, hospital and dispensaries are items under List II of the Constitution and hence, States are empowered to make laws on these subjects.

Epidemic Diseases Act, 1897:  This is the main legal weapon the government possesses today. The objective of this Act is to provide for better prevention of the spread of dangerous epidemic diseases. Any state government, when satisfied that any part of its territory is threatened with an outbreak, may authorize all measures, including quarantine, to prevent it.

Section 2 empowers a state to inspect people and segregate suspected patients. Measures and regulations for the inspection, vaccination, and inoculation of persons, including their segregation in a hospital, temporary accommodation, or otherwise can also be taken.

The government of India declared the Coronavirus disease as a ‘notified disaster’ under the National Disaster Management Act, 2005. This Act’s purpose is to coordinate the response to natural or man-made disasters and capacity-building in disaster resiliency and crisis response. 

Sanctions against violation of Quarantine

While dealing with an emergency caused by the outbreak of a dangerous disease, the state may seek the cooperation of the public. If the desired cooperation is not forthcoming, a regulation may be imposed. For example, Section 144 (Cr.P.C.) empowers the administration to impose restrictions on the personal liberties of individuals to prevent injury or danger to human life, health, and safety or disturbance of public tranquility.

Failure to obey or comply with such restrictions constitutes a punishable violation under the following sections of the Indian Penal Code, 1860.

Section 188: Whoever disobeys a direction promulgated by a public servant, if such disobedience causes or tends to cause danger to human life, health or safety, shall be punished with imprisonment for a term up to six months, or with fine or both.  Any person who disobeys any order or regulation under the 1897 EPD Act may be charged under this section.

Section 269: Whoever unlawfully or negligently does any act likely to spread the infection of any disease dangerous to life, shall be punished with a term up to six months, or fine, or both.

Section 270: Whoever malignantly does any act which is, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment for a term up to two years, or fine, or both.

Conclusion

“Desperate times breed desperate measures.” Quarantine, across the globe, is proving to be the best bet in the containment of Coronavirus disease. It might be interfering with our liberty but such a reasonable restriction is even permissible under our Constitution. In the interest of general public and order, it is also our duty as a citizen to cooperate with the government and help stop this outbreak.

Author: Sweksha from Law Centre-II, Faculty of Law, University of Delhi.

Editor: Tamanna Gupta from RGNUL, Patiala.

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