We live in extraordinary times. World Health Organisation has declared Covid-19 as a Global Health Emergency. The Indian Government has invoked the Epidemic Diseases Act,1897 and veritably declared a national health emergency. ‘The Epidemic Diseases (Amendment) Ordinance, 2020’ has been promulgated in April, 2020- mandating that attacks on health care workers- be its doctors or other health care professionals as cognisable and non bailable offences, which would attract a 7 year prison term. There is a national Lockdown in place. We are now exposed to Social Distancing, Contact Tracing, Quarantine, Containment Zones in different colours as red, yellow and green, strange expressions now rendered so common. Nearing a lakh of lives have been lost in 188 countries, the world over and over a million have been affected by the Novelcoronavirus.
Most importantly, internationally renowned scientists are grappling with the virus, which knows no cure. Vaccine, they say is a year or 18 months away. We have no precedents to follow. Yes, there have been Bubonic Plague, Black Death, Spanish Flu and the likes, since 1620, almost on a century to century arithmetical accuracy. Reference to the past, suggests that we may be in the midst of an early onset of the viral Pandemic, which may make more rounds, on mutation, as seasons change. There is no guarantee that those afflicted by this virus and cured are immune to it. South Korea is showing ‘repeat viral symptoms’.
The whole world is attacking, battling, challenging, defending the natural catastrophe with a ‘trial and error method’. Even the lines of treatment for the impacted, are not consistent or uniform, as no one Standard Operating Procedure is in place. The WHO protocol is missing because Nature has trumped and bemused the experts, with its dance of death and destruction. The threat of an extended Lockdown is real, as Germany has reported ‘relapse of the viral spread’ upon even ‘guarded and stategised reopening of the economy’.
The above scenario is real and scary. Judicial dispensation of Justice in these times is literally under suspended animation. The temples of justice are on shutdown and the Blind Lady of Justice has been incarcerated. Digital route to dispense with justice has proved to be a poor cousin of the physical world. That has prompted the Chief Justice of India Arvind Sharad Bobde to concede that- “It is the duty of executive to deal with the situation and it is best, that rather than judiciary or any other organ of the State, executive takes action on the situation. He gave 3 M’s formula to deal with the situation and these 3 M’s mean money, men and material. Executive is best suited to decide on what to do, how to do and when to do. Role of courts here is to ensure rule of law so that people’s lives and properties does not suffer, but on ground executive has to function, courts can’t ensure that. He said that courts ensure rights provided by executive but in the current situation declaration of rights is not a priority. Courts can look into matter of validity of administrative or executive actions but in protecting rights, courts have little to do right now as compared to other times.”
Be that as it may, we have the ‘Liberals’ liberals’’ as Justice V R Krishna Iyer called his critics once, are bemoaning on the supposed loss of fundamental rights to citizens and the invasion of the right to privacy of the citizens. No one in his right senses would ever belittle the sanctity of the fundamental rights of the citizens. ‘Right to be left alone’ as Justice Louis Brandeis famously proclaimed in the US Supreme Court, is now a fundamental right in India thanks to Justice Puttasamy decision crossing over from M P Sharma and Kharak Singh days. It is an unexceptionable right. No one can argue or does seek to argue with it. But, in the unusual and extraordinary times we live in (extraordinary is extraordinarily mild a word to ascribe to the reality), it is just that ‘public interest’ may have to yield. The right of ‘individual’ which may be paramount at all other times has to take a back seat ,for it even survive as a living being.
Search for an answer to these dissenters and naysayers leads one to the famed and unique decision of the US Supreme Court dt. 20th Feb, 1905 in Jacobson vs Massachusetts (https://supreme.justia.com/cases/federal/us/197/11/). As the 20th century began, epidemics of infectious diseases such as smallpox remained a recurrent threat. A Massachusetts statute granted city boards of health the authority to require vaccination “when necessary for public health or safety”. In 1902, when smallpox surged in Cambridge, the city’s board of health issued an order pursuant to this authority that required all adults to be vaccinated to halt the disease. The statutory penalty for refusing vaccination was a monetary fine of $5 (about $100 today). There was no provision for actually forcing vaccination on any person.
Henning Jacobson refused vaccination, claiming that he and his son had had bad reactions to earlier vaccinations. The Massachusetts Supreme Judicial Court found it unnecessary to worry about any possible harm from vaccination, because no one could actually be forced to be vaccinated: “If a person should deem it important that vaccination should not be performed in his case, and the authorities should think otherwise, it is not in their power to vaccinate him by force, and the worst that could happen to him under the statute would be the payment of $5.” 18 Jacobson was fined, and he appealed to the US Supreme Court.
Constitutional issues arose before SCOTUS on the validity of the statute of the Massachussets State vis a vis the US Constitution and the 14th Amendment and the generic or common law precept and practice in the exercise of Police Power of a State in ‘general public interest’. It seems as though SCOTUS was answering the wails of our ‘liberals’ It is all so stylish and romantic to talk of right to privacy in academic and pedantic terminology. But, it seems so distant and divorced from the ground reality we are now facing. There are even characters damning the central and state governments for locking down and impugning the ‘constitutionality’ of the acts- that right to livelihood was as paramount as right to life itself. They make good and entertaining reading. But not practical or sensible choices. Learning the law is so different from being wise at law. We have trusted the Chief Justice of India as the custodian of the national institution. He has earned his spurs. And he believes that “Executive is best placed” in the present circumstances. Surely, as the head of Judiciary, a co equal branch in a democracy, he is not seen to be yielding a quarter. He is only yielding to pragmatism of the present.
Now, contextually, read Justice Harlan’s words of wisdom, which resonate in India, as much as it should and does in any other democratic polity of today. The exposition is so real and apposite that the wordings are a slap on the face of these usual suspects. It may suffice to extract those golden words, as they are, as we are least competent to tamper with or paraphrase it.
“The defendant insists that his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person. But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good.
On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that ‘persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state; of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be, made, so far as natural persons are concerned.”
“The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is, then, liberty regulated by law.” In the Constitution of Massachusetts adopted in 1780 it was laid down as a fundamental principle of the social compact that the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for ‘the common good, ‘and that government is instituted ‘for the common good, for the protection, safety, prosperity, and happiness of the people, and not for the profit, honour, or private interests of any one man, family, or class of men.’ The good and welfare of the commonwealth, of which the legislature is primarily the judge, is the basis on which the police power rests in Massachusetts.’
By orders dt. 31st March, 2020, Circuit Courts’ of Appeals in Alabama, Ohio and Texas have blocked orders banning non-essential medical procedures, during the Coronavirus outbreak, leaning heavily on the judgement in Jacobson judgement of 2005 vintage. There is every reason to believe that this issue may get escalated to the US Supreme Court and the decision in Jacobson come under the scanner once again.
Let us get real. Right to life and livelihood are far more fundamental to our very existence than possibly right to privacy. If we have a right to be left alone- then we need to be alive. If we are not alive, does right to privacy have a place. The Executive, both central and state governments, politics aside, is straining every nerve and sinew to keep us alive. Judiciary says that “Executive is best placed”. US Supreme Court had said in 1905- that Police Power may have to subsume our fundamental rights, for public interest. The times we live in are such that the right to privacy seems so esoteric though it may be too basic for a man in his ‘castle’, for the world and India are now in the midst of a war against a virus, to just live, in the first place.
(Narasimhan Vijayaraghavan- Author is practising advocate in the Madras High Court)