Coronavirus and Civil Liberties Reimagining a New Social Contract Theory (Part-I)

Anshul Dalmia [*]

Introduction: Examining the conceptual background

“Amid the clash of arms, the laws are not silent”

These words from Lord Atkin’s dissenting judgment from the infamous Liversidge judgment should remind us of the dangerous consequences of blindsiding the rule of law and abandoning our civil liberties during the time of an emergency. Every nation, in the course of its political history, has faced an emergency of some kind leading to a probable suspension of civil rights. The outbreak of such a global pandemic, raising serious health and safety concerns, gives rise to the need to curb individual civil liberties in order to protect the citizens at large and maintain public health and order. However, the primary question which needs to be answered in such a dilemma is whether the ultimate solution lies in the curtailment of these fundamental rights in order to achieve a larger utilitarian goal. In such dire times, the State usurps massive power in laying down policies and guidelines that secure "all" citizens during this crisis. Along with such entrenchment of power, it becomes even more important to scrutinize their actions on the anvil of legality subject to rigorous judicial review. Furthermore, it must be ensured that the actions of the State are compliant with the Constitution even in these uncertain times as they subsequently get embedded in the legal landscape of the country.

An exodus of migrant workers was drenched away in bleach and disinfectant under the garb of preventing the spread of the coronavirus. While there is no empirical evidence affirming such a conclusion, the spraying of such chemicals violated their right to live with dignity and equality. On the other hand, the State of Karnataka released and published the personal details of over twenty thousand people who had travelled a few days before the lockdown period and even implored them to send an image that were then to be tracked continuously. Several mobile applications were installed in order to track the movement of these people daily. This action that has been subsequently followed in several other states violates the core right of an informational self-determination and additionally, the constant surveillance mechanism gives way to potential violations of the fundamental right of privacy. The non- payment of wages to migrant workers by the State highlights the gross violation of the right to livelihood and leads to the subsequent violation of the right against forced labor. Along with this, there remain widespread reports of excessive police violence in enforcement coupled with the immediate closure and selective adjudication by the courts. Thus, there exist several barriers for a litigant to have efficient access to justice in such scenarios giving a carte blanche to the State to go ahead and violate fundamental rights guaranteed by the Constitution. Adopting the utilitarian theory laid down by the likes of Bentham and Mill, which encompass the need to outweigh the wants of the few in order to satisfy the needs of the many,[i] the Indian government has gone ahead and sacrificed several of the most intrinsic fundamental rights guaranteed to the people at the altar of larger community interests. All these steps have been sought to be justified under the veil of this crude utilitarianism and additionally have a dubious legal basis.

The author attempts to answer the temporary loss of civil liberties in the times of a pandemic by revisiting the social contract theory laid down by Thomas Hobbes, John Locke and Jean Jacques Rousseau. This theory of political evolution highlighted an agreement between the Leviathan (‘the State’ in the contemporary context) and the masses in order to have a voluntary transfer of rights in the existing ‘state of nature’ in order to end the nasty brutish regime created by the people.[ii] This social contract theory even created substantive obligations and responsibilities for either side. In the backdrop of this theory, this blog post attempts to highlight the need to redraw the contours of the social contract and redefine its obligations, keeping in mind the exceptional medical state we currently are in. Moreover, the author proposes the adoption of Hans Kelsen’s theory of political theology as the probable jurisprudential solution warranted, primarily in Part II of this blog post.

This part of the blog post would attempt to provide the contextual underpinning and the legal background for an optimum discussion on its jurisprudential notions. In the backdrop of the ADM Jabalpur case (the landmark emergency case), the paper attempts to re-visit the present pandemic through the dissent of Justice Khanna. Borrowing from the lessons learnt, the paper attempts to redraw the contours of the mechanisms through which an emergency would be efficiently handled vis-à-vis the preservation of intrinsic civil liberties.

Rights versus Policy: Remembering Justice Khanna’s Dissent

In order to holistically comprehend the underpinnings, present behind this crisis, it is imperative to look at the state of the legal milieu in the country. The existing framework highlights the ineffective authorization and rule by arbitrary executive decrees without being backed by legal safeguards. The absence of the timely intervention of the court has even led to the creation of a legal culture that favors State action over judicial review purportedly for the greater public good.

The State has furthermore derived this power of unrestricted supervision from statutes that are extremely vaguely worded and provide the widest possibility of sweeping powers. Section 6 of the National Disaster Management Act, 2005 entrusts the National Disaster Management Authority with the duty of laying down any policies, plans and guidelines in order to effectively curb the disastrous consequences and promote efficient management. Additionally, Section 2 of the colonial Epidemic Diseases Act, 1897 empowers the government to make "any" regulation to prevent the outbreak of any disease. While these legislations seem extremely ambiguous, the lack of adequate safeguards makes them arbitrary in their function and prone to violation. The absence of any fetters on the power to declare an epidemic, power to increase the duration of the curfew, temporarily curtail the enjoyment of fundamental rights as well as take any steps in order to curb the spread of the virus points towards potential misuse.

Apart from this utilitarian justification, the major argument against the enforcement and protection of civil rights remains that during such times, the executive decisions constitute policies and the adjudication must be left to the government only in order to exercise the efficient separation of powers. In the recent order hearing that took place in the Apex Court regarding the non-payment of wages, the Chief Justice expressed his fears of adjudicating the rights since it would be essentially supervising the pandemic and substituting the wisdom of the State by the wisdom of the court. This hesitation and subsequent nonchalance by constitutional courts in preserving intrinsic civil liberties showcase the continuation of arbitrary state action. In such cases, the courts are not being implored to effectively adjudicate or even overlook the government’s pandemic policy but merely are being requested to examine the violations of fundamental rights that are taking place in the course of enforcing this policy. Hence, this curtailment has shifted the paradigm to a right versus policy debate and subsequent, imbroglio.

The answer to the above question lies in the applicability of the most celebrated dissent of Justice Khanna in the case of ADM Jabalpur to the present situation at hand. In this case, the Supreme Court held that during an emergency or an exceptional scenario that plagues the country, the courts must be circumspect in affecting the government’s extraordinary measures and solutions, as well as must not replace or question its executive decisions or policies. Justice Khanna however, in his dissent agreed that while the Court could not inspect or evaluate the government’s wisdom in declaring an emergency or even test its legality, it had the utmost duty in protecting the rights that were threatened and even protecting the needy. The major emphasis in an emergency of any kind must be securing the grant of personal liberty and preventing insidious encroachments on civil liberties.

Concluding Remarks: Paving the way for a Jurisprudential Study

We can thus find a similarity in the pattern of adjudication of cases in this public health emergency. Borrowing an analogy from the dissent actually seems to be the panacea for all this confusion and legal malady. What becomes important in such times of anarchy is that these extraordinary measures have curtailed individual civil liberties. Coupled with this is the judiciary abdicating it’s imperative responsibility of making the government accountable for such violations, re-creating the revolution of lawlessness similar to that of ADM Jabalpur, a judgment which was effectively struck down by a nine judge bench of the Supreme Court in KS Puttaswamy v. Union of India. These times therefore warrant an effective redressal mechanism along with a strict judicial review over government action.

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This is a two-part post. The second part can be accessed here.

[*] Anshul is a fifth-year student currently pursuing BA LLB (Hons.) at the WB National University of Juridical Sciences. Currently serving as the Editor of the Journal of Indian Law and Society and was the former Editor-in-Chief of the Indian Constitutional Law Review. [i] Jacob Viner, Bentham and J.S. Mill: The Utilitarian Background, 39 (2), The American Economic Review, 360 – 389 (1949). [ii] O.P. Gauba, An Introduction in Political Theory, 85 (1981).