Author: Stuti Bisht, IV year of B.A.,LL.B from Symbiosis Law School, Hyderabad.
The law is considered to be a correct procedure or any system of rules which a particular country recognizes and enforces them for imposing penalties, but what if these laws which are meant to protect rights of people are the ones which take away their rights by violating the fundamental right provided to citizens of India? If any existing law violates Fundamental Rights enshrined in our constitution its courts duty to strike out that law rather than to wait for A majority government to take a decision on amending or striking down the law if in any case it is violative.
There are several provisions present in our existing laws which somehow violate the very purpose of fundamental rights enshrined in our constitution. Therefore, a law which takes away or in any manner abridges the fundamental rights of citizens are subjected to be struck down as void or ultra-vires by exercising the power of judicial review under Article 13(2).
The laws of Lockdown in present-day situations of pandemic are violating the right to privacy. The right to emergency medical care was also violated during the present pandemic. During the present lockdown new changes are also proposed to labour laws which violate fundamental rights.
VIOLATION OF RIGHT TO PRIVACY IN WAKE OF LOCKDOWN
One of the recent additions is the right to privacy. The jurisprudence on this issue jumped significantly when a nine-judge Supreme Court tribunal, in the case of Justice KS Puttaswamy v. Union of India, read the right to privacy in Article 21 of the Constitution. Since this right is considered derived from the right to life, it has the same scope and limitations as the right to life.
Since under the 44th Constitutional Amendment of 1976, the right to life cannot be suspended even in cases of national emergency, the right to privacy also enjoys immunity against this disease. However, in these troubled times, if a national emergency or some emergency is not proclaimed, and there is chaos, fear and a national lockdown due to the Coronavirus outbreak, the question is whether the right to privacy can be suspended or weakened and, if negative, can it still be limited to the general public interest?
It also considers what kinds of limitations the constitution may allow, especially if the right to privacy has acquired the status of a fundamental right. Consider the recent action by the Karnataka Department of Health and Family Welfare, which has posted addresses including the number of houses, streets and locations of 14,910 people quarantined for coming from abroad on the official website. That list also includes the countries they recently visited.
Although the names and phone numbers of these individuals are not disclosed, the information disclosed is also detrimental to your privacy and, indeed, your security. Legally, patients have the right to privacy of their personal data, including before the Supreme Court. recognized the right to privacy in the Puttaswamy case. In the case of Mr. X v. Hospital Z. The Court ruled in this case that patients have the right to confidentiality and privacy with respect to their personal data. However, this right is not absolute and can be neglected when there is a greater public interest.
Furthermore, Regulation 2.2 of the Indian Medical Council Regulations (Professional Conduct, Etiquettes and Ethics), 2002, states: “defects in the disposition or character of patients observed during medical attendance should never be revealed unless their revelation is required by the laws.” He also mentioned that doctors can also disclose this information when there is a greater common good. However, the relevant question is whether Puttaswamy's decision will have any influence on the interpretation or application of these laws with respect to patient confidentiality. In the Puttaswamy case, it was established that the right to privacy is inherent in a fair life. However, it is not complete and is subject to reasonable restrictions.
The action of the Karnataka health department must be judged against the touchstones of the aforementioned triple test, as the unwritten right to privacy and its limitations are read in Article 21. Under Article 13 (2), State actions must not be incompatible with any of the articles, including article 21, contained in Part III of the Constitution.
Regarding the issue of legality, the Code of Ethics Regulation allows the disclosure of confidential information of patients by doctors when there is a risk to public health, which also occurs here. However, there is no law, including the Epidemic Diseases Act of 1897, which allows the government to disclose this information on the official website. Therefore, the actions of the Karnataka health department are not legally supported.
Regarding the issue of proportionality, the government's action should be proportional to the issue. In this regard, Minister Sanjay Kishan Kaul in the Puttaswamy case said that the scope of the restriction was considered proportional to the need for such a restriction. In the given case, the disclosure of personal information of these people is based on the assumption that some of them may be infected and, among the possible infected people, some may ignore the quarantine order for themselves and Some of the people who act outside their homes can infect other people, it should be adapted to their right to privacy, which is definitely infringed.
If both conflicting interests are compared with each other according to the principles of proportionality, it seems highly unfair to put the privacy, life and freedoms of these quarantined people at such risk. This is all the more worrying as many of these people have written to the Karnataka government saying they face oysterism and fear of being evicted from the moment their details are released. Here, violating your privacy rights has a ripple effect on your security.
Therefore, the action in question in the proportionality test failed. If the government aims to ensure that these people do not violate quarantine restrictions, they may be advised to remain indoors and take action against them until criminal charges for the spread of the disease are released under Sections 269 and 270 of the Indian Penal Code, if and only if they refuse to comply with government orders.
But on the contrary, the excessive violation of your right to privacy and endangering your life and dignity, just for fear of violating quarantine restrictions that could lead to the spread of the disease, is excessive.
On the question of legitimate intention, Judge DY Chandrachud, in his opinion in the Puttaswamy trial, said that the restrictions imposed on him must be reasonable and not arbitrary and must be directed to some legitimate purpose of the State.
If we ignore the first two parts of the test, we can argue that the names were published in the public interest that they contain the spread of the coronavirus and therefore have a legitimate purpose to protect public health. However, because the methods used by the government are not legal or proportionate, they constitute a violation of privacy, even if they are directed to a legitimate purpose.
Finally, it should be noted here that these people were only quarantined, and there was no positive test. Thus, this unfair surveillance of the State, if it has sufficient means to locate the people who have ruined the quarantine, unnecessarily stigmatizes them and cannot be constitutionally accepted.
Protecting, defending and claiming rights under normal circumstances is still easy, but time has truly demonstrated the safeguarding potential of the Constitution, the defense potential of the State and the potential of citizens. The state must take Puttaswamy's decision seriously and try to defend the sanctity of the people's constitutional rights, even in these difficult times. For them it will be the hallmark of a compromised democratic constitution which will face this confrontation with one of the greatest challenges for humanity.
CHANGES PROPOSED TO LABOUR LAWS DUE TO LOCKDOWN ARE CONSTITUTIONAL
In the wake of the transition crisis, many states have modified existing labor laws, either by suspending them entirely or by extending the workday. The prime minister's speech on May 12 also indicated imminent legal changes, which would undoubtedly include amendments to labor laws. It is axiomatic that these reforms must comply with the fundamental rights guaranteed to operate, as well as the DPSP that imposes on the State the advancement of labor interests in its policies. Any legal change will inevitably be challenged in court, and constitutional standards must be met to survive such a challenge.
One aspect of the crisis is that states that import the network have seen labour shortages, rising wages. This has led some states to take steps to restrict the return of migrant workers. Article 19 (1) (d) of the Constitution protects the right to move freely throughout India. The Karnataka government's decision to cancel trains for migrant work, although later reversed, may have violated Article 19 (1) (d).
Furthermore, reports indicate that the Gujarat government is contemplating issuing a directive allowing factories to initiate disciplinary proceedings against migrant workers returning to their home states. Forced labour violates article 23 of the Indian Constitution, which establishes a "right against exploitation" that prohibits human trafficking, beggars and forced labour.
In PUDR v. Union of India, the Supreme Court declared that the laws protecting conscripted workers and interstate migrant workers were intended to guarantee basic human dignity; Violation of these laws would violate the right to life under Article 21.
Furthermore, the Court determined that "forced labour", prohibited by Article 23, includes not only physical force, but also the threat of imprisonment or a fine.
In the PUDR, the Court also noted that no one wants to work below the minimum wage without energy and remorse, and that relief can include hunger or poverty.
However, instead of encouraging workers to return with wage guarantees and improving working conditions, the amendments introduced by the states remove basic protections from labour law.
For example, although the right to form associations, including trade unions, is a fundamental right guaranteed by Article 19 (1)(c). The ordinance remains only in the "safety and security" provisions of the Factories Act, excluding the health chapter and provisions associated with hazardous processes.
This includes detailed provisions on sanitation, ventilation, overcrowding, drinking water, containers, and urinals, all of which were certainly more important during the global health pandemic, not much less. The right to health of workers is recognized as part of the right to life in a series of trials, including the provision of PPE for workers exposed to hazardous conditions Occupational Health and Safety Association of India v. UOI.
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