Independent India inherited a legal system which was designed to control the colonised. Caught in the relentless grip of COVID-19, several State governments have invoked the Epidemic Diseases Act, first drafted to deal with bubonic plague that swept Maharashtra in 1897. The Act prohibited public gatherings, and regulated travel, routine screening, segregation, and quarantine. The government was given enormous powers to control public opinion. Bal Gangadhar Tilak, described as the ‘father of Indian unrest’ by Valentine Chirol of The Times (London) was imprisoned for 18 months. His newspaper, Kesari, had criticised measures adopted by the government to tackle the epidemic. The law was stark. It did not establish the right of affected populations to medical treatment, or to care and consideration in times of great stress, anxiety and panic.
Silence on these crucial issues bore expected results. In June 1897, the brothers, Damodar Hari Chapekar and Balkrishna Hari Chapekar, assassinated W.C. Rand, the plague commissioner of Poona, and Lieutenant Charles Egerton Ayerst, an officer of the administration. Both were considered guilty of invading private spaces, and disregarding taboos on entry into the inner domain of households. The two brothers were hanged in the summer of 1899. The assassination heralded a storm of revolutionary violence that shook the country at the turn of the twentieth century.
Today our world should have been different. The government could have paid attention to migrant labour when it declared a lockdown on economic activities, roads, public spaces, transport, neighbourhoods and zones in which the unorganised working class ekes out bare subsistence. The result of this slip-up was tragic. Thousands of workers and their families were forced to exit the city, and begin an onerous trek to their villages. The unnerving spectacle of a mass of people trudging across State borders carrying pitiful bundles on their heads and little babies in their arms, without food or money, shocked the conscience of humankind. The neglect of workers upon whose shoulders the Indian economy rests, exposed the class bias of regulations. Confronted with the unexpected sight of people defying the lockdown, State governments and the Central government rushed to announce remedial measures. The afterthought came too late and gave too little.
Dispensing with rights
On March 31, at a hearing of the Supreme Court of India on two petitions relating to the welfare of migrants, the Central government demanded that the Court should allow the imposition of censorship over media reports on measures adopted by the state. The government claimed that panic over the migration of thousands of bare-footed people was based on fake news, and that the scale of migration was over-estimated. Therefore, the Court should support rules that no news will be published or telecast without checking with the Central government. The plea was rejected, and the Court suggested that responsible journalism should rely on daily official bulletins. Witness the irony. The government is concerned about reports of involuntary migrations. It is not concerned with the reason why people were forced to walk out of the city in the first place.
The issue at hand is not the lockdown or other measures taken by the government. We recognise with great unease that governments easily dispense with basic human rights in the name of managing pandemics. We bear witness to the fact that a group of helpless workers were hosed down with chemical solutions in Bareilly, Uttar Pradesh. The decision to close down an entire country without simultaneously recognising the specificities of Indian society has resulted in brutality and violence. Consider scenes of the police swinging their lathis indiscriminately to punish individuals who are forced to defy the lockdown.
‘Overreach’ of power
There is another cause for unease. Admittedly in emergencies governments have to adopt extraordinary measures. Yet, reports of authoritarian leaders across the world, giving to themselves unprecedented power at the expense of legislatures, judiciaries, the media, civil society, and civil liberties have set off ripples of doubt. When the disease has run its course, will these leaders abdicate the power they have amassed in the time of the coronavirus? Will they restore institutions that inspire public confidence, because they act as brakes on the exercise of unbridled power?
The prospect seems remote. If democratic India continues to invoke draconian colonial laws that were drafted in another time and for another purpose, why should we expect anything different in the future?
On March 16, United Nations human rights experts issued a statement expressing deep concern with the way leaders were amassing power ostensibly for dealing with the pandemic. The statement urged governments to avoid an ‘overreach’ of security measures when they respond to the coronavirus outbreak. Emergency powers, the experts insisted, should not be used to quash dissent. More significantly, these measures have to be proportionate, necessary and non-discriminatory. Some states and security institutions, continued the statement, will find the use of emergency powers attractive because it offers shortcuts. There is need to ensure that excessive powers are not hardwired into legal and political systems. Care should be taken to see that restrictions are narrowly tailored. Governments should deploy the least intrusive method to protects public health. “We encourage States,” concluded the statement, “to remain steadfast in maintaining a human rights-based approach to regulating this pandemic, in order to facilitate the emergence of healthy societies with rule of law and human rights protections.”
The rights experts have good reasons to issue this warning. Around the world, we witness the sorry spectacle of leaders — not precisely known for their commitment to democracy or human rights — steadily unravelling every check on the use of unmitigated power by the executive. In Israel, Prime Minister Benjamin Netanyahu, who is facing court cases for corruption and breach of trust, has closed the judiciary and postponed his own trial. The government has been given immense powers of surveillance. And a newly constituted Parliament, or Knesset, is not allowed to meet.
In Hungary, Prime Minister Viktor Orbán, notorious for his anti-migrant tirades, has personalised immense power. He now rules by decree. Existing laws and parliamentary oversight have been suspended. In the Philippines, President Rodrigo Duterte has appropriated broad emergency powers in order to take effective decisions to tackle the virus. Again, he is not known for his commitment to civil liberties or to the Constitution. In Chile, the declaration of a ‘state of catastrophe’ has repressed anti-government dissent that has been raging on the streets since last year.
No counter-balancing steps
States are the product of history, composed of layers of meaning some of which have been fashioned for another time. The nature of the state is historically specific. Yet modern states share a common determination; a ruthless ambition to control the minds and bodies of citizens. Epidemics provide an opportunity to accomplish precisely this, to do away with inconvenient checks and balances institutionalised in the media, the judiciary, and civil society. The dismantling of constitutions and institutions will have a major impact on societies. Do decisions to control the pandemic have to be at the expense of human rights and democracy? On March 6, Michelle Bachelet, the UN High Commissioner for Human Rights, advised governments to ensure that the measures they adopt to control the virus do not adversely impact people’s lives. “The most vulnerable and neglected people in society,” she recommended, “must be protected both medically and economically.” She gave sage advice, democracy does not permit trade-offs.
Neera Chandhoke is a former professor of Political Science at Delhi University