NATIONAL LAW UNIVERSITY ODISHA , CUTTACK

SUBJECT – HUMAN RIGHTS

PUBLIC EMERGENCEY IN HUMAN

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 TABLE OF CONTENT

INTRODUCTION......................................................................................................................5

REVIEW OF LITERATURE.................................................................................................8

STATEMENT OF PROBLEM..............................................................................................9

OBJECTIVES OF STUDY..................................................................................................10

HYPOTHESIS......................................................................................................................10

RESEARCH QUESTION....................................................................................................10

DEROGABLE AND NON DEROGABLE RIGHTS..............................................................11

INDIA......................................................................................................................................14

COVID AND EMERGENCY..................................................................................................18

CONCLUSION........................................................................................................................19

BIBLIOGRAPHY....................................................................................................................20

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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) and the European Convention on Human Rights (ECHR) (Art. 15) , present clear
similarities (for convenience, these clauses are reproduced in box 6.1.). The Paris Minimum
standards of Human Rights Norms in a State of Emergency, the result of work done by
experts within the International Law Association in (1976 - 84) primarily under the
leadership of S. R. Chowdhury.

States of emergency are specifically regulated under human rights law. Although derogation
or suspension of “certain rights is permitted when such emergencies are declared, measures
suspending rights should be avoided when the situation can be adequately dealt with by
establishing proportionate restrictions or limitations on certain rights, as described above.

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 such as sunset or review clauses, in
order to ensure return to ordinary laws as soon as the emergency situation is over. Some
rights, such as the right to life, the prohibition from torture and the principle of legality in
criminal law, cannot be derogated from even during states of emergency and continue to
apply in all situations. Ordinary courts should maintain their jurisdiction to adjudicate
complaints for violations of non-degradable rights. 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 with a view to putting an end to the violation or abuse, bringing
perpetrators to justice and providing victims with protection and effective remedies. 1 The

1 https://www.corteidh.or.cr/tablas/r28084.pdf
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principles of legality and the rule of law require that fundamental requirements of fair trial
must be respected during a state of emergency. Only a court of law may try and convict a
person for a criminal offence. The presumption of innocence must be respected. 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, colour, sex, sexual orientation and
gender identity, disability, language, religion, political or other 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
support for employment and livelihoods, housing, food, education, social protection and
health, in order 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. An official
proclamation is essential for the maintenance of the principles of legality and rule of law.
Proclamations must be in line with relevant constitutional and other provisions of national
law that govern such proclamations and the exercise of emergency powers. In addition, States
Parties to the International Covenant on Civil and Political rights are required to notify the
UN Secretary-General under article 4.3 of the Covenant. States must inform the affected
population of the exact substantive, territorial and temporal scope of the application of the
state of emergency and its related measures. Sufficient information about emergency
legislation and measures should be communicated swiftly and in all official languages of the
State, as well as in as many other languages widely spoken in the country as possible, and in
an accessible manner so the public at large is aware of the new legal rules and can conduct
themselves accordingly. 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 declared”,2 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 emergency powers is

2 Anna-Lena Svensson-McCarthy, International Law of Human Rights and States of Exception - With Special
Reference to the Travaux Préparatoires and Case-Law of the International Monitoring Organs (The
Hague/Boston/London, Martinus Nijhoff Publishers, 1998) (International Studies in Human Rights, vol. 54), pp.
49 and 721 (hereinafter referred to as Svensson-McCarthy, The International Law of Human Rights and States
of Exception).
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essential 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”.

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 STATE OF PROBLEM
The international human rights regime has expanded overtime and to cover different aspects
of human life. The difference in circumstances allow for different rights to be applied in
different extent by the states. The basic human rights principles from which derogation is not
possible in any emergency is essential to secure people their right to live freely.

OBJECTIVE OF STUDY
To find the limits to which Human rights regime permits derogation against the existing
human rights and the specific provisions providing for it.

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

RESEARCH QUESTION
1. What are the circumstances in which the derogation of Human rights 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 individual liberties of the citizens be temporarily suspended in order to cope with
the dangers confronting the nation. Emergency situations 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 State is forced into a choice between
competing values and the sacrifice of one to the other. That is the rationale of emergency
provisions, which find 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 suspension of the human rights guaranteed by
the Government in time 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 suspension of human rights guaranteed by the Convention in time of war,
public danger or other 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

3 Health and Human Rights , Vol. 20, No. 2, SPECIAL SECTION: Human Rights and the Social Determinants of
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insurrection. These rights are so basic that to suspend them destroys the basis of a civilised
State and the Rule of Laws. Indeed, they are so fundamental to the human personality that
without “them human life is either not possible (e.g. protection of the right to life) or civilised
life becomes impossible and meaningless (e.g. freedom from torture and cruel treatment,
right to fair trial). These rights represent a core of essential human values. There is similarity
between this thinking and the doctrine propounded by our Supreme Court that there are
certain essential features of the Constitution, which from its core or basic structure and are
unamendable.

Under the ICCPR it is the obligation of a party-State to 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 emergency, all the non-derogable rights under ICCPR have not been made non-
suspend able 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 is non-
suspend able, 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”

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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)].

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-
suspend able 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 fair trial; freedom of thought,
conscience and religion; freedom from imprisonment for inability to fulfilled a contractual
obligation;

rights of minorities;

rights of the family;

right to a name;

right of the child;

right to nationality;

right to participate in government and right to a remedy.

The Paris Minimum Standards mark a significant progress in the field of non-degradable
rights. In times of war and emergencies certain minorities become special targets of attack.
Mahatma Gandhi said civilization is judged by the treatment accorded to minorities. The
protection extended to minorities during emergency is a salutary advance. The concept of
minorities should, however, not be restricted merely to linguistic, ethnic or religious
minorities but should be expansive enough to cover all non-dominant segments of society
which by virtue of their peculiar status or condition are subjected to discrimination and
disabilities”.5

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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. For example, for effective prosecution of war
or for quelling an armed rebellion it is not necessary to suspend the guarantee of immunity
from imprisonment for inability to fulfil contractual obligations. In the year 1949 the
doctrine that certain basic human rights cannot be suspended was not articulated in human
rights instruments. Yet that was precisely what some of our founding fathers projected in
the debates in the Constituent Assembly relating to emergency provisions. Draft Article 280
corresponding to present Article 359 of the Indian Constitution which empowers the
President to issue an order suspending the enforcement of all or any of the fundamental
rights, came in for severe criticism.

H.V. Kamath, the stormy petrel of the Constituent Assembly, urged that there are certain
guaranteed fundamental rights which cannot be abrogated in any eventuality, not even in
case of the gravest emergency. He gave the example of the provision abolishing
untouchability and asked: Do you mean to say that when there is an emergency we can
permit the observance of these taboos and will not take any action on those who enforce
untouchability in any form on anyone else. After referring to cultural and educational rights,
he was emphatic that there are certain rights which cannot be suspended in any case,
however grave the state of emergency be. (Emphasis supplied) Shibban Lal Saksena
vigorously supported this point of view: There are some articles in this Chapter that have
nothing to do with emergency. Why should they be suspended. If this article comes into
operation, discrimination can also be practised. And that would go against the spirit of the
Fundamental Rights”.6

Pandit Hirday “Nath Kunzru moved an 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 President, all the fundamental rights
should be suspended. (Emphasis added) R.K. Sidhva supported the amendment and argued:
Thee is a clause regarding begar (forced labour). Do you want that in an emergency begar
should continue? Article 18 says that no child below the age of fifteen shall be employed in

6 Health and Human Rights , Vol. 20, No. 2, SPECIAL SECTION: Human Rights and the Social Determinants of
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mines. If it is emergency, do you wish that a child of fourteen should go into a mine and
work? And then there is Article 19 about rights relating to religion, education and so on.

Mahavir Tyagi s objection to the article enabling suspension of the right to move the
Supreme Court for enforcement of fundamental rights was forceful and unequivocal Even if
the whole house agrees to arm the government with such powers even in the case of an
emergency, I for one wish to bring it on record that I am opposed to this, now and ever. I
think the rights of an individual to move the judiciary should not be taken away in any
circumstances. He was almost prophetic: many rich and precious lives, the lives of many a
learned and the patriots will be danger if this pernicious article is allowed to creep into the
Constitution”.

Unfortunately these far-sighted pleas did not prevail. Alladi Krishnaswami Ayyar,
supporting the emergency provisions deftly blunted them by conceding that there are rights
that do not need a suspension during the period of war. Such rights will not, and cannot, be
suspended. He argued that instead of singling out particular clauses, it is left to the
President, who I have no doubt will act in a reasonable and proper manner, not in a spirit
of vandalism against the fundamental rights guaranteed to the citizen in the Constitution.
Later events have sadly belied the hopes and assurances of Alladi and other founding
fathers who supported the emergency provisions. The warnings which fell on deaf ears in
1949 were painfully realized when emergency was declared on 26 June, 1975 on the pretext
that the security of India was threatened by internal disturbance.

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 enquiry and investigation into the
validity of an order depriving a person of his personal 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 to an examination hall” or for special medical
treatment under a doctor of his choice or for any other facility because that would be
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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 the 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 emergency by a Presidential Order under
Article 359. Article 20 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 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-fulfilment 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 be
the Constitution but should also be made expressly non-suspend able 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 away
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

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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

ACHR, of all human rights instruments, is unique in this respect because it is the first to
include among the rights that may not be suspended judicial guarantees essential for the
protection of non-suspendable rights. Article 7 (1) of the ACHR guarantees to every person
the right to personal liberty and security. Article 7 (6) inter alia provides that any one who is
deprived of his liberty shall be entitled to have recourse to a competent court in order that
the court may decide without delay on the lawfulness of his arrest or detention and order his
release if the arrest or detention is unlawful. Article 7 is not included in the list of non-
suspendable rights mentioned in Article 27 (2) which is as follows Article 3 (Right to
juridical personality); Article 4 (Right to life); Article 5 (Right to humane treatment);
Article 6 (Freedom from slavery); Article 9 (Freedom from ex post facto laws) Article 12
Freedom of conscience and religion); Article 17 (Rights of the family); Article 18 (Right to
a name); Article 19 (Rights of the Child); Article 20 (Right to a nationality); and Article 23
(Right to participate in Government), or of the judicial guarantees essential for the
protection of such rights.

An important question arose whether under the ACHR the writ of habeas corpus can be
suspended during an emergency. The Inter American Commission on Human Rights (The
Commission) took the view that even in emergency situations the writ of habeas corpus
may not be suspended or rendered ineffective because Even with respect to the right to
personal liberty, which may be temporarily suspended in special circumstances, the writ of
habeas corpus enables the judge to determine whether the warrant of arrest meets the test of
reasonableness, which is the standard prescribed by the case law of certain countries that
have found themselves in states of emergency.

8 Human Rights Quarterly, Vol. 37, No. 1 (February 2015), pp. 80-106
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 COVID AND EMERGENCY

Until 4 “April 2020, eight states have exercised the right to derogation from its obligations
under the ECHR on the entire territory. This list of states include North Macedonia, Albania,
Georgia, Estonia, Moldova, Armenia, Romania and Latvia. The governments from 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, but only to the
extent required by such circumstances. The question that should be raised is: Do we really
need activation of derogation clauses? And more important: Are states willing to respect the
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 starting from right to
privacy (Article 8); freedom of religion (Article 9); freedom of expression (Article 10);
freedom of association (Article 11) and ending 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 as 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, due to the fact that they are already permitted under the ECHR and of course
they have absolutely no impact over non-derogable (inviolable) human rights mentioned
above in this text. Maybe, the only justified reason is to satisfy the legality requirements
because these hard times of extraordinary situation, states have needs to adopt new or adapt
its current legislation in accordance to these” extraordinary circumstances.

9 Human Rights Quarterly , Aug., 1988, Vol. 10, No. 3 (Aug., 1988), pp. 372-394
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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. 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 governments 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, civilised 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 emergency situations that are
so severe that they constitute a threat to the life of the nation or to 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 in fact
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 effort 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

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BIBLIOGRAPHY

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