What of right to health?

by May 8, 2020 0 comments

The danger to prisoners’ health was recognised by the Supreme Court when it issued directions addressing the problem of overcrowding in prisons, particularly during the Corona contagion

The COVID-19 pandemic is one of the biggest challenges India has faced in recent times and is, in fact, a test of the resilience of our democracy. There is a collective realisation in Indian society that the world we live in has changed forever. This shift is not limited to social interactions or healthcare infrastructure but permeates all aspects of our socio-political lives, including the criminal justice system.

In several countries, police powers have been expanded and are being used in a repressive and even brutal manner in what has been referred to as a “toxic lockdown culture” by the UN High Commissioner for Human Rights, Michelle Bachelet.

While we have fortunately not faced such a broad misuse of emergency powers in India, concerns have nonetheless been raised about the conduct of the police and the operation of the justice system as a whole. The judiciary’s deference to the executive, the abuse of power by police officers in dealing with ostensible lockdown violations and prison overcrowding are just some of the issues that have come to light.

A particularly complex issue is the continued arrests of individuals in connection with the February riots in North-East Delhi. The manner in which these arrests have been made by the police has been the centre of much controversy.  Numerous instances have been reported of individuals allegedly being arrested without any clear information regarding the charges against them. The prohibition on visits to jails means that family members are unable to ascertain the well-being and sometimes even the location of the arrestees. In some cases, it is even unclear whether the individual in question has been detained for questioning or has, in fact, been formally arrested.

There have allegedly also been instances where family members have been detained by the police when the intended arrestee could not be immediately located. Advocates representing suspects or individuals charged in connection with the riots have also expressed their frustration at not being able to meet their clients to ensure that there is no violation of their constitutional rights. In many cases, lawyers have alleged that they were unaware that their clients had been arrested or of the precise charges against them.

The issue of arrests in the unrest, thus, sits at the crossroads of many different concerns — whether legal representation should be considered as an essential service, possible political motivations behind the arrests, how pursuing justice in a particular case should be balanced against broader public concerns and how police powers should be exercised in emergency situations.

However, a particularly important concern is safeguarding the arrestees’ right to health, which is guaranteed under the broader right to life under Article 21 of the Constitution of India and determining the extent to which this right should be protected against the police’s power to arrest.   

In light of the COVID-19 pandemic, arresting and placing individuals in jails can seriously jeopardise their health. One especially poignant example is that of Safoora Zargar, a Jamia Milia Islamia scholar, who was 14-weeks pregnant when she was arrested in relation to the February riots and has allegedly been facing difficulties with medical care while in custody. Zargar is just one of the cases that provoked the recent statement of protest by feminist activists and scholars and brings to light the way in which factors such as gender further complicate the impact of such arrests on arrestees’ right to health. 

This danger to prisoners’ health was recognised by the Supreme Court when it issued directions addressing the problem of overcrowding in prisons. A close reading of the apex court’s order shows that the court addresses the COVID-19 pandemic both as a public health issue as well as a serious threat to the health of prisoners.

The Supreme Court clearly recognises that prisoners are particularly susceptible to infections due to their close living quarters and emphasises the need to ensure that they, as well as prison staff and anyone else who may come in contact with them, are protected from this pandemic.

The Jamiat Ulama-I-Hind relied on these directions in its petition before the Delhi High Court against the arrest of individuals in connection with the North-East Delhi riots. In response to this petition, the Delhi High Court, in its order issued on April 28, directed that all arrests in connection with this case have to be made in accordance with the Supreme Court’s directions. It further stated that all such arrested individuals are free to individually apply for bail. The High Court’s order is problematic in that it gives primacy to bail as a remedy without recognising the difficulty that arrestees may face in availing it without adequate legal assistance.

In fact, the lockdown itself can be used as a reason to deny bail. Sharjeel Imam’s bail was denied on the ground that the period of investigation in his case had been extended. This extension, in turn, had been requested by the police on the ground that the probe had been slowed down by the ongoing lockdown. If, for a moment, we set aside the question of bail in sedition cases, it cannot be denied that the threat to Imam’s health caused by the COVID-19 pandemic is being further exacerbated by the pressures put on the police infrastructure.

Nevertheless, the High Court’s engagement with this issue reflects the Supreme Court’s concern with prison overcrowding and the resultant health hazards for arrestees and prisoners. Several other High Courts, most notably the Kerala High Court, have also attempted to limit arrests to cases where they are absolutely unavoidable.

Thus, the continued arrests of individuals in the North-East Delhi riots cases fly in the face of the judiciary’s concern with protecting arrestees’ and prisoners’ Article 21 rights. This is particularly egregious in light of the large number of arrests in this case, which progressively compounds the risk to the health of both individuals and the public. Even prior to this case, the susceptibility of the police to arrests, abuse and arbitrariness has long been recognised in Indian and international legal discourse.

The Supreme Court, too, in landmark cases such as DK Basu vs. State of West Bengal, has recognised the need to regulate the arrest powers of the police in order to prevent their rampant abuse. In a time of public crisis such as the present pandemic, it is particularly important for agents of the State, such as the police, to exercise their power in a rational and ethical manner that both protects the rights of the individual and the safety of the public. While the Government has said that these arrests are necessary in light of the seriousness of the offences, it has failed to justify why arrests in the cases of particular people are unavoidable. It has not provided any evidence that these individuals may flee, tamper with evidence or engage in further offences. In essence, the Government fails to provide an explanation strong enough to justify endangering the right to life of these individuals as well as the threat posed to public health. Ironically, while discussions of arrest powers have usually focussed on balancing the rights of the individual with the safety of the community, in this case the rights of the individual coincide with the safety of the community. Arbitrary and unnecessary arrests, thus, damage both. 

Globally, where individual countries have responded to the COVID-19 epidemic with forceful and repressive measures, international bodies have called for a renewed respect for human rights. As Indian society adapts to the changes brought by this crisis we, too, are faced with choices about the functioning of our legal and political institutions, including the police. As the UN Secretary General has said, “Human rights cannot be an afterthought.” It is necessary to ensure that police powers are not abused, especially when they jeopardise a right as crucial as the right to life as well as public safety. It has long been understood that the State is expected to exercise its power in a responsible and ethical manner. It is necessary that we make a renewed commitment to this principle in present times.

(Writer: GS Bajpai/ Monal Gera; Courtesy: The Pioneer)

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