Delhi High Court’s reminder: Public health is the priority

Written by Rishabh Narain Singh

The Delhi High Court recently ordered that it is mandatory for citizens to wear masks, even while travelling alone in their private vehicles. Given the state of affairs, where this stubborn contagion is not willing to be curtailed, the HC’s verdict comes as a much-needed reminder.

The cavalier attitude of citizens was exposed when they defiantly flouted guidelines by failing to wear masks and maintain social distancing. The delivery of this verdict — at a time of a national health crisis — was anxiously awaited on the judicial side.

The Epidemic Diseases Act, 1897 (EDA), conceived during British rule, was brought back from hibernation after the outbreak of COVID-19. Section 2 of the EDA, 1897 empowers the state government to effect special measures to stymie the further transmission of an infectious disease.

Exercising their powers under Section 2, all states (including Delhi) proceeded to issue a slew of guidelines to be followed by all citizens, which included the compulsory wearing of masks in public places.

The bone of contention arose when a lawyer challenged a fine of Rs 500, imposed on him for not wearing a mask, while he was travelling in his private vehicle. In his plea before the Delhi High Court, he fervently argued that the fine ought not to be imposed as he was travelling “alone” in his “private vehicle”, and that his “car” constitutes a “private place”.

It was also contended that since the Delhi Epidemic Diseases (Management of COVID-19) Regulations, 2020 (issued under Section 2 of the EDA, 1897) did not apply to “private places”, wearing masks was not mandatory and the slapping of the fine was irrational and arbitrary. All his contentions were firmly repelled by the HC, as it went on to observe that an individual’s private car will also be counted as a “public place” for the larger purpose of protecting and preserving public health, especially from the merciless onslaught of the pandemic.

The term “public place” occurs in a host of statutes and legislation. Black’s Law Dictionary stipulates that a public place qualifies as any location that the local, state or national government maintains for the use of the public, such as a highway, park, or a public building. In simple parlance, any place to which the “public” has access can be called a “public place”.

However, on unearthing the object, purpose and mandate of the Regulations of 2020, the term public place should not be construed in a strictly grammatical sense. The private vehicle of a person, when exposed to the public view, can qualify as a public place, since the person in the driver’s seat exposes himself and others to the vulnerabilities of this contagion by coming in contact with other individuals.

When viewed through the prism of the object and purpose of these regulations, a public place acquires a broader meaning to achieve a heightened level of health protection during an alarming health crisis. This never-ending, hyper-technical debate about the interpretation of the term “public place” should not act as a roadblock and stifle the larger mandate of protecting “public health” amid a “public health emergency of an international concern”.

The Delhi High Court was correct and justified to espouse a purposive approach and interpret the term public place on the touchstones of the aims and objective of the health regulations issued by the Delhi Government.

At this critical juncture, it is pertinent to mention a popular case from American jurisprudence, Jacobson v. Massachusetts (1905). The city of Massachusetts was adversely affected by the outbreak of smallpox, which compelled the state to enact a statute that advocated for compulsory vaccination for all citizens.

Refusal to get vaccinated would have invited a fine of $5. As expected, a challenge was made to the law for being “oppressive” and “unreasonable” and it ended up travelling to the US Supreme Court.

The SCOTUS upheld the compulsory vaccination law by holding that in times of a grave public danger which puts a cascading effect on public health and throws it on the back burner, it is well within the purview of a state’s power to impose “reasonable regulations” to grapple with an untrammelled transmission of a disease and bulwark public health and safety.

Indubitably, the right to health and an appropriate standard of living is zealously guarded by Article 21, which is the Kohinoor of our Constitution.

After the revolutionary judgments by the apex court in R C Cooper v. Union of India and Maneka Gandhi v. Union of India, where the ghost of A K Gopalan’s case was jettisoned and cremated, the future courts started adopting an “expansionist approach” to the terms “life” and “personal liberty”, as contemplated in the text of Article 21. It ultimately leads to the creation of a plethora of rights through the route of judicial interpretation, including the right to a fair trial, right to health, right to privacy, etc.

It was correctly pointed out before the Delhi High Court that the subject of “public health” exclusively lies within Entry 6 of the State List of our Constitution, which makes it the sole prerogative of the states to adopt policy measures to ensure that public health is not impaired.

Besides being an inalienable right under Article 21, reinforcement of public health also germinates from the Directive Principles of State Policy (DPSP) under Article 39(f) taken together with Article 47 of the Constitution. Although by the virtue of Article 37, these Directive Principles cannot be enforced by any court of law, states are bound to apply these principles while framing their policies, as they are “fundamental in the governance of a country”.

Further, since India is a party to the International Covenant on Economic, Social and Cultural Rights (ICESCR), it is mandatory to give effect to its Article 12, which postulates that states are required to take all possible measures to progressively realise the enjoyment of “highest attainable standards of physical and mental health” of its citizens.

Article 253 mentions the enabling power of the Parliament to implement and discharge its onerous international obligations created by various treaties, which have been duly ratified.

This conclusive reasoning was also echoed in the landmark judgment of Vishaka v. State Of Rajasthan (1997), where it was remarked that the state should adhere to the ratified international agreements and enforce them by enacting necessary legislations.

The cumulative effect generated by multifarious obligations created by health being a fundamental right (Article 21), a DPSP [Article 39(f) +Article 47] and an international obligation [Article 12 of ICESCR], reminds us of the fact that our health lies at the core of our liberty and human dignity, without which, all other fundamental freedoms lose their true meaning and essence.

Only one minor concern arises. Bearing in mind the landmark judgment of the Apex Court in K S Puttuswamy v. Union Of India, wherein the right to privacy was unanimously declared as a fundamental right within the umbrella of Article 21, it is noteworthy that the term “public place” cannot be stretched to such an enormous extent, that it starts including the houses and private dwellings of individuals.

Otherwise, it will give “carte blanche” to the authorities to barge into the homes of individuals, and hold them liable for failing to wear masks and comply with the guidelines in force. One should never forget the widely-quoted landmark dissent of Lord Atkin in Liversidge v. Anderson, where he boldly articulated that “Amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war, as in peace.”

With the second wave of COVID-19, it becomes absolutely necessary to strictly adhere to common protective measures like wearing masks and practising social distancing, as a lockdown no longer remains an effective solution to tackle the rapid upsurge in the number of cases.

As the vaccination drive is in full swing and has started gaining traction, it becomes our duty to adopt a disciplinary methodology and follow the governmental regulations in letter and spirit. As envisioned by the Preamble to our Constitution, which is reflective of the philosophy of our founding fathers, the protection and preservation of “public health”, ensures the “fraternity assuring the dignity of an individual”, leading subsequently to the achievement of “unity and integrity of a nation”, which is the need of the hour to nullify the malaise of this pandemic.

The writer is a 3rd year Law Student pursuing B.A L.L.B (Hons) from Faculty Of Law, Allahabad University