NATIONAL LAW UNIVERSITY ODISHA, CUTTACK

SUBJECT – HUMAN RIGHTS

TOPIC - PUBLIC EMERGENCY IN HUMAN

SEMESTER - IX

SUBMITTED TO: SUBMITTED BY:

DR. ANANYA CHAKRABORTY PARUL PRIYA NAYAK

(ASSOCIATE PROFESSOR OF LAW) (2018/B.A.LL.B/074)

 TABLE OF CONTENT

INTRODUCTION......................................................................................................................3

HYPOTHESIS...........................................................................................................................5

RESEARCH QUESTION..........................................................................................................5

DEROGABLE AND NON DEROGABLE RIGHTS................................................................6

INDIA........................................................................................................................................9

COVID AND EMERGENCY..................................................................................................11

CONCLUSION........................................................................................................................12

BIBLIOGRAPHY....................................................................................................................13

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 INTRODUCTION

A ”number of human rights instruments contain provisions which allow States to adopt
measures suspending the enjoyment of these rights to the extent strictly required by situations
of emergency, for instance in the event of an armed conflict, internal or international, or
following a natural disaster. The relevant provisions of the International Covenant on Civil
and Political Rights (ICCPR) (Art. 4), the American Convention on Human Rights (ACHR)
(Art. 27).”

If “derogations from a State's human rights obligations are needed to prevent the spread of
COVID-19, all measures taken should be proportionate and limited to those strictly required
by the exigencies of the situation. This requirement relates to the duration, geographical
coverage, and substantive basis of the state of emergency. Accordingly, state of emergency
legislation and measures should be strictly temporary in scope, the least intrusive to achieve
the stated public health goals, and include safeguards, to ensure a return to ordinary laws as
soon as the emergency is over. Some rights, such as the right to life, the prohibition of
torture, and the principle of legality in criminal law, cannot be derogated even during states
of emergency and continue to apply in”situations.”

States“should“take measures to prevent human rights violations and abuses associated with
the state of emergency perpetrated by state and non-state actors. Allegations of such
violations and abuses should be effectively and promptly investigated to put an end to the
violation or abuse, bringing perpetrators to justice and providing victims with protection and
effective remedies.1 The principles of legality and the rule of law require that fundamental
requirements of fair trial must be respected during a state of emergency. Emergency
declarations based on the COVID-19 outbreak should not be used as a basis to target
particular individuals or groups, including minorities. Measures taken must not involve
prohibited discrimination on any grounds such as race, color, sex, sexual orientation and
gender identity, disability, language, religion, political or another opinion, national or social
origin, property, birth, or other” status.”

States“should “provide timely and effective measures to support the enjoyment of core
economic and social rights of people affected by emergency restrictions, including through

1
Audrey Lebret, 'COVID-19 pandemic and derogation to human rights ( Journal of Law and the Biosciences, 4
May 2020 ) https://academic.oup.com/jlb/article/7/1/lsaa015/5828398 accessed on 15th September 2022
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support for employment and livelihoods, housing, food, education, social”protection, and
health, to enable them to comply with the emergency measures. For a state of emergency is
be lawfully declared, it must be publicly and officially proclaimed.

A“state“ of emergency should be guided by human rights principles, including transparency.

A state of emergency should not be used for any purpose other than the public necessity for
which it is declared2 in this case to respond to the COVID-19 pandemic. It should not be used
to stifle dissent. Transparency and the right to information during a state of emergency
require that media freedom is protected, as journalism serves a crucial function “during the
emergency. Supervision of the exercise of emergency powers is essential to give substance to
democracy and the rule of law. Emergency measures, including derogation or suspension of
certain rights, should be subject to periodic and independent review by the legislature. Any
emergency legislation introduced under a state of emergency should be subjected to adequate
legislative scrutiny. There should also be meaningful judicial oversight of exceptional
measures or a state of emergency to ensure that they comply with the limitations
described””above.

2
WHO. Constitution of the World Health Organization. Available at
https://www.who.int/governance/eb/who_constitution_en.p pdf accessed 17th September 2022
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 HYPOTHESIS

The COVID pandemic has posed itself as a challenge to the existing Human rights
framework. The threat of COVID has made it essential for governments to limit freedoms
and deal with the pandemic the capacity of the state to enforce positive rights has also
suffered. Thus it is essential that the basic rights that are mandated and their derogation to the
point to which is permissible to be established.

RESEARCH QUESTION

1. What are the circumstances in which the derogation of Human rights is provided in
different circumstances?
2. To what extent rights can be derogated?

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 DEROGABLE AND NON DEROGABLE RIGHTS

There are“times when a nation is unexpectedly and suddenly overtaken by events and forces,
which seriously endanger its security and the lives of its citizens. Such situations may require
that the individual liberties of the citizens be temporarily suspended to cope with the dangers
confronting the nation. Emergencies place democratic governments in a real dilemma by
bringing about a conflict between its primary obligation to protect the integrity of the State
and its equally important obligation to protect the human rights of its citizens and other
persons within its jurisdiction. The rationale of emergency provisions, which find a place in
many national constitutions permitting the suspension of guaranteed fundamental”rights.

Article “352 of “our constitution provides for a declaration of emergency. Under Article 358,
on a declaration of emergency, the fundamental rights guaranteed by Article 19 stand
suspended. Furthermore, Article 359 of the Constitution, as originally enacted, provided that
when a Proclamation of Emergency was in operation, the enforcement” of any fundamental
right may be suspended by the issue of a Presidential”Order.3

Regional and international instruments of human rights also reflect the same trend. For
example, “Article 15 of the European Convention on Human Rights (ECHR) permits the
Contracting States to take measures derogating from their obligations under the Convention
in respect of the guaranteed fundamental freedoms in time of war or other public emergency
threatening the life of the nation. Article 4 of the International Covenant on Civil and
Political Rights of 1966 (ICCPR) provides for the suspension of the human rights guaranteed
by the Government in times of public emergency, which threatens the life of the nation.
There is a similar provision, Article 27, in the American Convention on Human Rights, 1969
(ACHR), which empowers the suspension of human rights guaranteed by the Convention in
times of war, public danger, or another emergency that threatens the independence or security
of a State” Party.

At the“same time it is also recognized that there are certain basic human rights, which cannot
be suspended during any kind of emergency, be it war or armed rebellion, or civil
insurrection. These rights are so basic that to suspend them destroys the basis of a civilized
State and the Rule of Law. Indeed, they are so fundamental to the human personality that”

3
Health and Human Rights, Vol. 20, No. 2, Human Rights and the Social Determinants of Health,
https://www.jstor.org/journal/healhumarigh Accessed 16th September 2022
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 without “them human life is either not possible (e.g. protection of the right to life) or civilized
life becomes impossible and meaningless (e.g. freedom from torture and cruel treatment,
right to a fair trial). These rights represent a core of essential human values. There is a
similarity between this thinking and the doctrine propounded by our Supreme Court that there
are certain essential features of the Constitution, from its core or basic structure, and are
unamendable.

Under the ICCPR a party-State must bring its laws in conformity with the provisions of the
Covenant. It is regrettable that in the matter of non-suspension of human rights during an
emergency, all the non-derogable rights under ICCPR have not been made non-suspendable
in our Constitution. It is more regrettable, that the Attorney General of India, G.
Ramaswami, during the proceedings before the Human Rights Committee under the ICCPR
in 1991 should have wrongly asserted that the laws and the Constitution of India are fully in
conformity with” ICCPR.4

At present, there are eleven rights, which are recognized as non-derogable, that are non-
suspendable, in regional or international human rights instruments.

I. “Right to life ICCPR: Art.6; ECHR Art.2; ACHR Art.4

II. Prohibition of torture ICCPR, Art.7, ECHR, Art.3; ACHR, Art.5
III. Prohibition of slavery or servitude; ICCPR Art.8; ECHR, Art.4, ACHR, Art.6
IV. Prohibition of retroactive criminal laws; ICCPR, Art. 15; ECHR, Art. 7; ACHR, Art.9
V. Right to recognition of legal personality; ICCPR, Art. 16; ACHR, Art. 3
VI. Freedom of conscience and religion; ICCPR, Art. 18; ACHR, Art. 12
VII. Prohibition of imprisonment for breach of contractual obligation: ICCPR, Art. 11
VIII. Rights of the family: ACHR, Art. 17
IX. Rights of the child: ACHR, Art. 19
X. Right to a nationality: ACHR, Art. 20
XI. Right to participation in government: ACHR, Art. 23”

Discrimination is“prohibited in these instruments by the very provisions which permit

suspension of human rights either specifically, as in ICCPR Article 4 (1) and ACHR Article
27 (1) or by necessary implications on account of compliance with other obligations” under
international law [ECHR, 15 (1)].

4
Health and Human Rights, UNW. Gender Equality Measures in COVID-19
https://www.unwomen.org/en/news/in- focus/in-focus-gender-equality-in-covid-19-response Accessed on
17th September 2022
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 The ”Minimum Standards of Human Rights Norms in a State of Exception [popularly known
as the Chowdhury report and referred to as the Paris Minimum Standards] list sixteen non-
suspendable rights. They are: Right to legal personality; freedom from slavery and servitude;
freedom from discrimination; right to life; right to liberty; freedom from torture and cruel,
inhuman, or degrading treatment or punishment; right to a fair trial; freedom of thought,
conscience, and religion; freedom from imprisonment for inability” to fulfil a”contractual
obligation5.

i. Rights of minorities
ii. Rights of the family
iii. Right to a name
iv. Right of the child
v. Right to nationality
vi. Right to participate in government and right to a remedy.

5
WHO. Rational use of personal protective equipment for coronavirus disease (COVID-19) and considerations
during severe shortages. Available at
https://apps.who.int/iris/bitstream/handle/10665/331695/ WHO-2019-nCov-IPC_PPE_use-2020.3-eng.pdf
Accessed 27th September 2022
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 INDIA
Certain ”rights “have no real nexus with the purpose of the emergency in the sense that their
suspension does not facilitate or advance the achievement of the objective of the emergency
and therefore their suspension is unnecessary. Amendment to the effect that only certain
fundamental rights in the draft constitution could be suspended because it is not necessary
that, when a Proclamation of Emergency has been issued by the President6, all the
fundamental rights should be”suspended.

The hardest “knock came most unexpectedly from the Supreme Court. In its decision in
A.D.M. Jabalpur V. Shivkant Shukla delivered on 28 April 1976 the Court by a majority of
4 to 1, Justice Khanna dissenting, ruled that once there was a Presidential Order under
Article 359 suspending the enforcement of the fundamental rights to life and liberty
guaranteed by Article 21 a person who is deprived of his liberty by a detention order, even
though it was passed mala fide, could not approach the Court for redress. The Supreme
Court in its judgment delivered on 25 January 1977 in Union of India V. Bhanudas, when
much further. It ruled that the Presidential Orders suspending enforcement of fundamental
rights impose blanket bans on any and every judicial inquiry and investigation into the
validity of an order depriving a person of his liberty and that the Court was debarred from
even granting relief in the shape of giving facilities to a detenu to be taken from his place of
detention to his home or an examination hall” or for special medical treatment under a
doctor of his choice or any other facility because that would be enforcing “fundamental
right through the aid of the Court. The consequence of these two disastrous judgments was
that the writ of habeas corpus was in substance suspended and the Rule of Law was
supplanted. Arbitrary detentions increased, conditions and treatment of detenus in jail
worsened and the executive in many cases became a law unto itself.

In light of the bitter experience of the June 1975 emergency the Constitution (Forty Fourth
Amendment) Act, 1978 was passed. Several salutary changes were made in the emergency
provisions, the most significant of which was the amendment made to Article 359 to the
effect that fundamental rights guaranteed by Articles 20 and 21 of the Constitution could
not be suspended during an emergency by a Presidential Order under Article 359. Article 20

6
Park JE, Jung S, Kim A, Park JE. MERS transmission and risk factors: a systematic review. BMC Public
Health 2018; 18(1): 574.http://dx.doi.org/10.1186/s12889-018-5484-8] [PMID: 29716568] Accessed on 29th
September 2022
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 provides for protection in respect of retrospective criminal laws, double jeopardy, and self-
incrimination.

Article 21 guarantees that no person shall be deprived of his life or personal liberty except
according to the procedure established by law. India is a party to ICCPR to which it acceded
and ratified in July 1979. Article 4 (2) lists seven provisions of the ICCPR from which no
derogation is permitted. These are Article 6 (right to life), Article 7 (prohibition of torture)
Article 8, paragraphs 1 and 2 (prohibition of slavery and servitude), Article 11 (prohibition of
imprisonment for non-fulfillment of contractual obligations), Article 11 (prohibition against
retroactive criminal laws and penalties), Article 16 (the right to be recognized as a person
before the law), Article 18 (freedom of thought, conscience and” religion).7

Rights ‘without remedies are worthless. It is of paramount importance that the right to
judicial remedies and especially the writ of“habeas corpus must not only be guaranteed by
the Constitution but should also be made expressly non-suspendable during emergencies.
The immense value of the Great Writ, habeas corpus, cannot be over-estimated and its
availability during an emergency is indispensable. This will ensure effective supervisory
jurisdiction by a competent court of law to determine whether detention is legal and valid. It
should also enable the production of detainees before the court, which will go a long way to
prevent torture, degrading and inhuman treatment, and other physical or psychological
abuses to which detenus are usually subjected. In case production is manifestly
impracticable or detrimental to public interest the government must in any case be obligated
to inform the court about the place of detention. The court should be empowered to give
directions for the medical examination of the detainee as also for the inspection of the
prison or place of detention by a medical officer appointed by the court. Regular visits by
members”of the family of the detainee and interviews with legal advisers, subject to
reasonable”regulations regarding time and place, as also visits by members of the
International Red Cross would be helpful and act as a deterrent to inhuman treatment of
detainees.8

7
International Covenant on Civil and Political Rights, opened for signature 19 December 1966, entered into
force 23 March 1976, G.A. Res. 2200 A (XXI), 21 GAOR Supp. No. 16, U.N. Doc. A/6316 (1966) (hereafter cited
as International Covenant).
8
Human Rights Watch. 2007. Venezuela: Disturbing Plan to Suspend Due Process. Chavez Supporters Seek to
Suspend Rights in Emergencies, 15 October 2007 . (http://www.hrw.org/en/news/2007/10/15/venezuela-
disturbing-plan-suspend-due-process). Accessed 30th September 2022.
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 COVID AND EMERGENCY

Until 4 “April 2020, eight“states have exercised the right to derogation from their obligations
under the ECHR on the entire territory. This list of states includes North Macedonia, Albania,
Georgia, Estonia, Moldova, Armenia, Romania, and Latvia. The governments of these states
have publicly announced that certain human rights and fundamental freedoms may be
temporarily suspended or restricted for the duration of the state of emergency. And more
important: Are states willing to respect basic human rights and provide protection for all
people without discrimination? Most measures taken to prevent the spread” of Covid-19 are
already covered by the Convention, such as the freedom of assembly which provides
exceptions to maintain public order and public health. Therefore, it is evident that in certain
circumstances exceptions are possible without invoking Article 15. Moreover, rights
contained in the ECHR start from the right to privacy (Article 8); freedom of religion (Article
9); freedom of expression (Article 10); freedom of association (Article 11), and end with
freedom of movement (Article 2 of Protocol 4) allow limitations for protection of health and
public order”even without any emergency. 9

The first “measures which were taken by most of the states worldwide address to the travel
restrictions that are instrumental for the protection of public health against highly contagious
diseases with a short incubation period, such as cholera or yellow fever or, to take more
recent examples, severe acute respiratory syndrome (SARS) and 'avian influenza (H5N1).
Covid-19 is a disease named severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2)
according to the World Health Organization. Having in mind the above stated, it is unclear
why states are exercising their right to derogations when these clauses have no impact,
because they are already permitted under the ECHR, and of course, they have no impact over
non-derogable (inviolable) human rights mentioned above in this text. Maybe, the only
justified reason is to satisfy the legal requirements because, in these hard times of
extraordinary situations, states have needs to adopt new or adapt their current legislation
under these" extraordinary circumstances.

9
Coronavirus disease 2019 (COVID-19) Situation Report - 35https://www.who.int/docs/default-source/corona
viruse/situation-reports/20200224-sitrep-35-covid-19.pdf?sfvrsn=1ac4218d_2 Accessed on 7th October 2022

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 CONCLUSION
It should never be forgotten that the ultimate justification for an emergency in a democratic
State is "to enable it to preserve vital values of a democratic society temporarily endangered
on account of unexpected situations of exceptional gravity. An emergency cannot be
declared for undermining the basis of democracy. The Rule of Law is an indispensable
feature of democracy. In the absence of the Rule of Law. Lawlessness predominates,
especially government lawlessness when there is no authority to question government
action, no mechanism to control it, and no institution to make it accountable and to check its
excesses. However grave the emergency it should always be remembered that there exists
an inseparable bond between legality, democratic institutions, and the Rule of Law. Once
that bond is severed, all ties with decent, civilized life have been severed and human beings
become devoid of humanity. Contrary to what may be believed, international human rights
law provides a multitude of legal prescriptions for managing emergencies that are so severe
that they constitute a threat to the life of the nation or the independence or security of the
State. In such situations, the bedrock of human rights principles must remain in force, and it
is the responsibility of the legal professions to help ensure that this is the case. Public
opinion may call for strong measures and vengeance in response to a severe crisis, and
Governments may well cater to these demands by resorting to drastic and far-reaching
security measures. However, peace and security are best served by an even-handed
administration of justice, also in times of adversity. It is a good lesson to keep in mind that
at no time in history has too much justice and respect for individual rights and freedoms
been harmful to national and international peace, security, and prosperity. In times of crisis,
a concerted effort10 by all actors in society, including” judges, prosecutors, and lawyers, to
maintain the highest possible standards of human rights protection is not only more difficult
but also more necessary than ever to contribute to the restoration of a constitutional order in
which human rights and fundamental freedoms can again be fully enjoyed by all.

10
Gawthrop, E. 2022. “The Color of Coronavirus:COVID-19 Deaths by Race and Ethnicity in the United
States”. APM Research Lab. April 20, 2022 https://www.apmresearchlab.org/covid/deaths-by-race. Accessed on
8th October 2022
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