THE LEGALITY OF QUARANTINE POWERS:A CROSS COUNTRY ANALYSIS IN THE LIGHT OF CONSTITUTIONAL SAFEGUARDS
Written by - Ayush Kumar, Chanakya National Law University, Patna & Shailee Mishra, University of Allahabad, Prayagraj
Abstract: The history of the outbreak of infectious diseases in various countries and thereby causing pandemics is very old. From the Black Death in the European countries & Asian countries around 14th century wherein, more than 20 million people, one-third of the continent’s population at that time had died approximately. With its history being very old, the sufferings of the people are old as well. Some of the statutes belonging to the colonial era and some are even older being used to enforce the coercive regulations across different countries. The different coercive measures include forced quarantine, sanitising the infected areas, increase in the prices of basic goods etc. Amidst all these, one important thing to note is the violation of rights of the common men or ‘Aam Janta’.
The authors in this article have tried to find out the past instances of stringent actions in times of health and humanitarian crises across a few countries and also tried to look into the same with the binocular of human rights violation whenever such stringencies have been enforced.
STRINGENCY AND ARBITRARINESS OF QUARANTINE: GENESIS ACROSS THE WORLD
“Liberty is not something a government gives you. It is a right that no government can legally take away.” - A.E. Samaan
The recent outbreak of CoVid-19 across the world and the actions taken by the countries following the outbreak fits with the notion of the above quote. It is too common to understand that fatal calamities require strong measures to tackle the aftermaths and contain its pitfalls. The same is with the WHO proclaimed pandemic CoVid-19. When the World Health Organization (WHO) proclaimed CoVid-19 a pandemic on 11th March 2020[Ma1] , countries across the globe started preparation to tackle this situation by means best suitable in such a scenario to contain its spread. In India, central and the state governments have invoked various legislations and statutes to contain the spread of this woeful disease.
Perhaps, this is not the first time when a situation like this has arisen. The history is too old. Societies have used strategies to isolate those infected with a disease from unaffected persons. But, back then, the word Quarantine wasn’t used. The history of this modern lexicon can be traced back to the Black Death in Europe in the early 14th century when around 1347, repeated waves of plague swept almost 1/3rd of the population of Europe. The plague had its widespread to different European countries; the institution of infection control had to take extreme control measures to tackle the situation. Many draconian steps were taken by those countries so as to effectively stop its spread and contain its impact further. For instance, Viscount Bernabo of Reggio, Italy proclaimed that all those infected was to be dispelled out of the city in fields either to recuperate or to die. Similarly, other countries resorted to the situation following that spread. This Black Death is known to be one of the earliest incidences in the history of the world when isolation or quarantine was used in order to contain the disease. Britain in 1825 acknowledged and supported the application of quarantine as is evident from its passing of the Quarantine Act of 1825.[i] Similarly in the USA, the application of quarantine by imposing health regulations was affirmed by the Supreme Court in the year 1824. In India, the practice dates back to the colonial era. In 1896, the bubonic plague started mushrooming in the Bombay presidency. By August 1897, around 1.32percent of Bombay’s population amounting to 10,813 people had died due to the plague. To contain its spread, the municipal commissioner of Bombay ordered that all infected persons were to be sent to the hospitals and all infected houses had to be evacuated and disinfected.[ii] According to Dr H. M. Fernando, who was called from Ceylon to the Municipal officers of Bombay to upend the spread was to quarantine the infected and segregate them from unaffected.
In all of these cases, the fundamental idea upon which quarantine rested was an infection. If a disease is communicable from one person to another, then the only way to stop its spread is to break the chain of transmission, sequestration and quarantine.
HUMAN RIGHTS VIOLATION DURING SUCH CRISES - TIMELINE
Human rights are the obligations which the states must abide by. In the recent pasts, not only India but other parts of the world have witnessed many large outbreaks of infectious diseases. And whenever such crises occur, they come up with different sets of tasks and obligations for various sections of the society particularly regulating entity i.e. government and its parts. The most exercised power of the government is imposing regulations and coercive measures to contain the spread in case of an upsurge of the communicable disease. The directions of Quarantine and isolation are among the most sought measures taken by the regulating authorities in most of the democratic countries.
In India, there are laws and regulations at the union level and state level. At union level, the power to quarantine any passenger of aircraft, coming outside of India & showing any symptoms of communicable diseases such as- plague, yellow fever, cholera, and other infectious diseases, is with the Health Officer posted at the airport for the verification and inspection of such international flights.[iii] There are similar restrictions which can be imposed on passenger ships, cargo ships & cruise ships.[iv] The other legislation is a 123 years old colonial-era statute, Epidemic Disease Act of 1897. This act sanctions the union government to take essential actions to deal with the risky epidemic disease at ports of entry and exit. Italso sanctions the states to take extraordinary actions or pronounce protocols to deal with epidemics within their state commands & in cases if the persons infected don’t cooperate or the concerned officers believe that taking such measures is important, compulsory and forced regulations may be imposed on the movement of such persons. Furthermore, in such crises, the states entrust some of these powers to the deputy commissioners in the districts, usually through state health acts or municipal corporation acts. Those who don’t conform to the orders promulgated by these commissioners may be detained and punished.
Having mentioned the authority of the officials, it is hereby equally pertinent to note that during the process of quarantining and isolating, the political and civil rights of the people are violated. These measures adversely affect the fundamental right “to move freely throughout the territory of India.”[v] Additionally, there are reported cases of human rights violation in different forms such as illegal detention i.e. detention without any notice, detention without informing family members, detention of family members of suspects as proxies to threaten and coerce the families to produce the person whom the police actually wanted to arrest and similar other acts of police. Post detention, detainees are rendered helpless as during lockdown they don’t get the opportunity to be represented by a lawyer and be produced before the magistrate within 24 hours of the arrest and it is in contravention of provisions of the constitution of India.[vi] Interpretation of Art.21 of the constitution can be that the state can deprive a person of their liberty only as per the due process established by law. Similarly, Art.22 states that no individual shall be apprehended in custody without being informed of the grounds of arrest and shall have the right to consult and protect himself with a lawful practitioner of choice. Repudiating detainees these rights, and any attempt to even contend for their freedom before a courtis a contravention that goes to the very core of our fundamental right to life and liberty, interpreting it a nullity. These rights can never be suspended, even during an emergency.[vii]
In a report of 25 jurisdictions comprising countries of six continents, European Union, WHO, etc. either Ministry of Health or subordinate to the same, or other departments are the central health authority in managing public health emergencies and taking relevant emergency actions to antagonize the same.[viii] These authorities are entrusted with various powers which are often deterrent in nature embracing the power to enter secluded homes and coercive powers to carry out precautionary measures, comprising the right to quarantine infected individuals, conduct obligatory vaccinations, and observe and monitor sick individuals. In Japan, provincial governors may command the hospitalization of patients.
The compulsive and coercive measures not only violate the rights as enshrined by the constitution of the concerned countries but also they infringe upon the basic human rights of the citizens in such cases.
To substantiate, recently United Nations Secretary-General Antonio Guterres said coronavirus pandemic is “a human crisis that is fast becoming a human rights crisis.” In the present crisis, men & women, youth & older persons, migrants, prisoners, LGBTQ, refugees, and many others are affected differently. In such a case, looking through the lens of human rights perspectives, there is a huge obligation to ensure everyone is protected and included in the response to this crisis.
The current outbreak of coronavirus pandemic is not only a public health crisis but social, economic, human rights problems as well. During such exigencies, extra precautionary measures are very obvious to be taken by the concerned health officials or their subordinates as the case may be. Officials dealing at ground level are empowered with various powers to contain the spread of the infectious disease. They are posted at airports & may give an order for the compulsory health check-up of the passengers of the flights coming from any foreign country where any infectious disease has spread or he may order to quarantine such passengers on the doubt of infection as the case may be. Similarly, at ports, any ships coming from infected countries or in case of any suspicion of infection can be ordered to be docked for a specific period as a precautionary measure to contain the spread. Either such powers come from a specific statute or they come extra constitutionally. Use of powers by the officials within the ambit of the statute is acceptable but when its use in an arbitrary manner is practiced, it infringes directly upon the rights of the people. Then, in addition to a public health crisis, it turns more than that- a human rights crisis. In such times of humanitarian disaster, governments are needed to be open and transparent. They need to be accountable to the people of their countries. Authorities necessitate to be open and blatant in their policy-making and must be eager to listen to and respond to condemnation.
Coercive measures may be justified in certain circumstances but it is also to be understood that they can backfire if applied in a heavy-handed, lopsided way, undermining the whole pandemic response itself.[ix]
[i] Proceedings of the Indian History Congress, 66Th Session, Santiniketan, 2005 (Indian History Congress 2006). [ii] Ibid [iii] Indian Aircraft (Public Health) Rules, 1954 2015. [iv] The Indian Ports Act 1908. [v] The Constitution of India, Art. 19(1) (d). [vi] The Constitution of India, Art. 21. [vii] Justice KS Puttaswamy (Retd) and another v Union of India and Others  The Supreme Court of India (The Supreme Court of India). [viii] The Law Library of Congress, Global Legal Research Center, 'Legal Responses To Health Emergencies' (Law Library of Congress 2015). [ix] United Nations, 'COVID-19 And Human Rights We Are All In This Together' (United Nations 2020).