Human Rights During the COVID-19 Pandemic

The COVID-19 pandemic posed grave threats to the lives and health of individuals. However, since the Constitutions of India, Pakistan and Bangladesh do not permit the proclamation of an emergency on health grounds, governments of these nations were constrained to rely, among other things, on ordinary legislation to tide over the threats posed by the pandemic. This chapter demonstrates that in the absence of any reliable system of checks and balances governing the exercise of emergency powers, the executives in these nations conveniently used the pandemic as the most effective means of imposing unwarranted restrictions on the civil and political rights of individuals. This approach of the South Asian executives during the COVID-19 pandemic was very much in line with their earlier tradition of unduly depriving individuals of their fundamental human rights under the guise of an emergency. Accordingly, this chapter puts forward some suggestions for obviating the possibility of using a public health emergency to dispense with rights which do not have any direct nexus with such an emergency.

Executive decree through delegated legislation had been the principal governance mechanism during the COVID-19 pandemic in India, with governments resorting to the rule of and by delegated legislation to an evolving situation. Although there was a genuine need to respond to the pandemic quickly, the breadth of the executive decrees and the complete lack of monitoring of these powers by the Indian Parliament was surprising. Given that the parliament’s core role is law-making and monitoring executive action, the absence of parliament during a time of crisis raises questions of institutional resilience, readiness and adaptability. There is also concern if there are structural issues and deficiencies in the Indian Parliament’s monitoring and oversight functions of the executive. This paper investigates the Indian Parliament’s powers to examine and monitor executive action and its shortcomings during the pandemic. The paper also considers how the right scrutiny principles and oversight frameworks can be strengthened in India.

The COVID-19 pandemic wrought unprecedented blows on human rights (HRs) of the masses globally. Though there was almost no part of the inhabited world that was not affected by the pandemic, few places were disproportionately affected. Right to life, mental health, employment and education were a few highlighted HRs that were widely affected. For South Asia, the issues to deal with ranged from threat to journalists with accurate information, arrests of persons critical of State actions, acute oxygen shortage, medication deprivations, socio-economic issues of the South Asian migrants, employment loans on exorbitant rates of interests of the overseas workers, to digital divide in education, lack of information on vaccines, misinformation and others. These were unmatched testing times for human rights institutions in South Asia, where their action or inaction could have irreversible effects on the conditions of human life. In this chapter, I attempt to map the functions and roles of the National Human Rights Institutions (NHRIs) of the South Asian States, India, in particular, in the COVID era. The scarcity of literature on this pertinent issue drives the motivation of this chapter. NHRIs are unique institutions as it is hard to theorize their role vis-a-vi the traditional doctrine of separation of powers. The independence of NHRIs from the government as an institution is not emphasized enough. The NHRIs can play a pivotal role during such unparalleled times in human history—from conditioning the rule of law standards to monitoring the judicial and legal responses to the human rights of masses. As a national watchdog institution for the protection of HRs during the COVID-19 pandemic was a test case to assess the effectiveness of NHRIs. The performance of the National Human Rights Commission of India (NHRCI) during the pandemic established NHRCI as an institution for the effective advocacy of HRs. Barring a few incidents, NHRCI exhibited its alacrity and underscored the HRs’ concerns emanating out of the pandemic. However, in terms of influencing government action by its advocacy, it certainly fell short. As an institution which can bring real change, the performance of NHRIs in South Asia does not inspire confidence. Among the NHRIs of South Asia, the performance of the National Human Rights Commission of Nepal stands out because apart from advocacy of HRs, it showed that NHRIs can go beyond advocacy and exhibit that it can make some real impact in times when human rights are throttled.

Civil society is an essential pillar to ensure that a nation remains on the upward development trajectory with a strong social cohesion. With its presence in the public, civil society monitors government policies and actions for public accountability and transparency, defends rights of citizens, reports and seeks redressal of human rights violations, engages in advocacy and delivers services to the vulnerable. Civil society organisations are the first responders when disasters strike. This chapter explores the role of civil society in protecting rights of the people, with special reference to India and South Asia during the health emergency posed by the COVID-19 pandemic.

Press freedom is one of the fundamental pillars of any democratic society proclaiming the rule of law. For a free press keeps the government accountable by critically scrutinising the manner in which the latter exercises its functions. Accordingly, the Constitutions of India, Pakistan and Bangladesh have either explicitly or implicitly made the guarantee of press freedom an integral part of their constitutionally entrenched bill of rights. Although the guarantee of freedom of press under these three Constitutions is not absolute, this chapter will stress that any restrictions imposed on this freedom must not be ‘arbitrary, unfair or based on irrational considerations’. Subsequently, this chapter will make it manifestly evident that the governments in India, Pakistan and Bangladesh during the COVID-19 pandemic unduly imperilled press freedom in an effort to shield from scrutiny the inadequacy of the measures that they had taken to shut down the circulation of the coronavirus.

The necessity of free speech during the COVID-19 pandemic remains as important as ever, if not more so. Free speech is a fundamental human right that allows individuals to express their opinions, share information, and engage in open dialogue. While the importance of free speech is clear, it's important to note that free speech rights can be subject to limitations, especially when speech poses a direct threat to public health or safety. Balancing free speech with responsible information dissemination is crucial during a crisis like the COVID-19 pandemic. The paper examines the measures undertaken by South Asian nations to navigate the delicate equilibrium between safeguarding free speech and combating the proliferation of disinformation during the COVID-19 pandemic. This study delves into the complex landscape of information dissemination, analyzing the extent to which these nations effectively balanced the imperative to maintain open discourse with the need to counter the potentially harmful impacts of misinformation. By employing a multidimensional framework encompassing legal, technological, and socio-political dimensions, the paper evaluates the strategies adopted by various South Asian countries, assessing their impact on information flow, public health outcomes, and democratic principles. Drawing upon a comprehensive array of primary and secondary sources, including legal statutes, policy documents, media content, and expert opinions, the research sheds light on the nuanced trade-offs made by governments. Ultimately, the paper contributes to the discourse on democratic governance during times of crisis, offering insights into the successes and challenges faced by South Asian nations in upholding free speech while curbing the dissemination of misinformation amid the COVID-19 pandemic. The findings provide a basis for comparative analysis and policy recommendations that can aid other regions in navigating similar challenges at the intersection of public health, information integrity, and civil liberties.

Right to health provides a foundation for the enjoyment of all other human rights. The importance of health is realized when it is not in sound condition. The relevance of this right becomes more important in times of health emergency when even the basic facilities are not easily accessible. Considering the importance of the right to health during the pandemic, the present chapter has looked into the prevalence of the right to health in the South Asian countries. The chapter has conducted an analysis of the legal framework covering the right to health in India, Bhutan, Nepal, and Bangladesh. The chapter has also looked into the response of these countries during the Covid-19 pandemic.

The affair of migration is as old as human civilization. Migration is the movement of people away from their usual residence. The migration can be internal (within the country) or international (across countries) borders. Earlier, the reason for the migration was because of war, terrorism, persecution, natural disasters, and climate change. But in recent years, people have also migrated to get an education, a livelihood, and other reasons. According to the last Census of 2011, India had 45.6 crore migrants, i.e., 38% of the country’s total population. COVID-19 dislocated human mobility by shutting down national borders and halting travel worldwide. COVID-19 has shattered the concept of ‘Life, work, and society’ and created challenges for the migrants. One of the issues during the pandemic was that the responsibility to take care of the migrants was with the states or of the center, and in the case of the states, whether the original State from where the people migrated or the State where the migrated people were getting their livelihood. The chapter argues that the rights bestowed upon migrant workers under the Indian constitution were breached extensively during the lockdown. Also, there needed to be more cooperation and coordination between the Centre and the State regarding law enforcement and promptly tackling the situation. The chapter also discusses the status of Migrants and whether it was the Centre or States’ responsibility to provide relief and redressal to the migrants during an unprecedented situation.

COVID-19 raised serious human rights concerns all over the globe. Common among them is health. South Asia was no exception to this phenomenon. The Supreme Court of India has passed certain directions on various issues of health. They recognise not only the rights relating to life and liberty but also various socio-economic rights. This paper presents a critical study of important decisions of the Supreme Court of India on health issues during COVID and also examines the precedential value of the significant observations on right to health from 1980 to 2023. Unlike popular belief, the judicial pronouncements do not provide a citizen a ready to enforce right to health under Article 21 of the Indian Constitution. Right to health is still a Cinderella among the fundamental rights, though these rights have witnessed vertical and horizontal expansion. A conclusive judicial pronouncement on the right to health by a constitution bench is essential.

Liberal democracies privilege negative rights (civil and political rights) over positive rights (economic and social rights). The negative rights are individualistic while the positive rights are usually realized collectively. The Constitution of Bangladesh has adopted this liberal prioritization of negative rights by downplaying the status of social rights as “judicially non-enforceable”. Interestingly, the Constitution also provides that the obligations for social rights can be used by the court in, inter alia, interpreting the constitution and the laws. This invokes, albeit indirectly, an individualistic promise of social rights under the Bangladesh Constitution. This chapter explains the constitutional promise of enforcing of social rights in Bangladesh and the extent to which the court has contributed to its collectivist construction. Taking health rights as an exemplary site, it shows how such promise of collectivism puts the individuals’ health right always at limbo, and at worst in the state of denial in the more extreme situation as experienced during the COVID-19 pandemic. More crucially, the pandemic occurred at a time when Bangladesh had already claimed its graduation from LDCs on the basis of its demonstrated economic progress. So, any failure to provide adequate protection of health rights during the pandemic was not only due to the idea of “progressive realization” that provides temporal justification for non-realization of social rights. Rather, it also shows the limits of collectivism that allows such social rights to remain available as individual rights (Young, 2012).

COVID-19 was an unexpected challenge to the whole world and affected both Pakistan and Sri Lanka severely due to their weak economic, social and healthcare systems. The virus threatened Economic and Social Rights (ESRs) which are well protected by international instruments. As member states of the International Covenant on Economic, Social, and Cultural Rights (ICESCR), both Pakistan and Sri Lanka have a general obligation to ensure the full realisation of these rights. However, there are controversies about the enforcement of these rights in domestic law, as illustrated in the pre-COVID-19 comments of the Committee on Economic, Social and Cultural Rights (ICESCR Committee) on the status of ESRs in Pakistan and Sri Lanka. These pre-existing problems are used as a background analysis to examine the responses of these two South Asian countries, to the pandemic. This chapter explains how Pakistan and Sri Lanka have dealt with COVID-19 and its consequences, in light of pre-existing issues and failures to protect ESRs according to international law. Ultimately both countries require an integrated recovery plan to respond appropriately to post-COVID-19 conditions.