Reproduced from: https://www.indialegallive.com/top-news-of-the-day/news/covid-19-has-raised-several-quarantine-issues-93773, published March 28, 2020,

While stamping the hands of those quarantined may seem an obvious method to prevent them from straying outside, they too have a constitutional right to live with dignity and without stigmatisation

While quarantine during a pandemic is a must, it has its negative side. Delhi, like states such as Maharashtra, has begun stamping the hands of the people who have been advised home quarantine in the wake of the coronavirus outbreak. Authorities are using indelible ink like that used for voters mostly on those who have a travel history.

In Delhi, people arriving at the Indira Gandhi International Airport from abroad are being checked for COVID-19, and if directed to remain at home, are being stamped “Home Quarantined”. The stamp states, “Proud to protect Delhiites. Home quarantined”, and has a date showing when the person was stamped. It has also been reported that Punjab has put up signboards outside the houses of people who have corona.

However, this is not as per one’s rights regarding quarantine. In India, where mob mentality is common, it can be dangerous. That was evident from Air India crew members who took to social media alleging discrimination by their housing societies when they returned from flying international sectors with some being asked to look for alternative accommodation. They said matters became complicated after their houses were stamped as “Quarantined” by health authorities. This, despite the airline coming to the aid of Indian citizens left stranded in other countries.

So while the government has the right to quarantine anyone, they too have some rights. The Constitution protects one’s individual rights. Among them is the right to not be denied “liberty” without “due process”. There’s a big difference between a procedural right and a substantive right. There is no free­standing constitutional right to go about your normal life while an epidemic endangers many people’s lives. At the same time, the government cannot simply confine people for arbitrary reasons, or without providing an adequate explanation and leaving one getting stigmatised.

It is true if someone is quarantined, he does not necessarily have a right to be released from it. But does he have the right to demand some sort of adjudicative process to determine whether the type and manner of quarantine are justified?

It is well-established that the government may confine people against their will if they present a danger to themselves or others even if they have not committed a crime. In Addington vs. Texas (1979), the US Supreme Court held that individuals with such severe mental illnesses that they presented a threat to their own safety or to the safety of others may be involuntarily confined to a mental hospital. Addington, however, also held that the government must prove by “clear and convincing” evidence that such confinement is justified—a much higher burden of proof than courts typically apply in civil cases.

An “individual’s interest in the outcome of a civil commitment proceeding is of such weight and gravity”, the Court explained, “that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence”. It’s not entirely clear that this heightened standard of proof would apply to coronavirus quarantines. Though Addington held that “civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection”, much of the Court’s analysis was restricted to the specific circumstances of a person believed to have severe mental illness.

A person confined due to the coronavirus is likely to recover much more quickly. And even if there is uncertainty about whether their symptoms are due to the coronavirus or some other disease, this uncertainty could be resolved by testing. For these reasons, it’s possible that the courts may permit the government to quarantine individuals based on less than clear and convincing evidence. Courts may also be reluctant to intervene in such cases. Thus, just as judges tend to defer to the executive on matters of national security, they are likely to defer to public health officials regarding a potential pandemic. But everyone has a constitutional right to live with dignity and without stigmatisation.

Articles 14 and 21 of the Constitution say:

“14. Equality before law—The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

“21. Protection of life and personal liberty—No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Apparently, there is no specific mention of human dignity as no such expression is used. Yet, the Supreme Court introduced a judge-made doctrine of human dignity by reading the same into these Articles on the same lines as crafted by the US Supreme Court. The Indian Supreme Court has read “right to life” enshrined under Article 21 as “right to live life with dignity”. And it is linked with the right to grow as a human being.

The basic spirit of our Constitution is to provide each person equal opportunity to grow as a human being, irrespective of race, caste, religion, community and social status. This means:

• I have a right to be tested for corona at the time of quarantine as per protocol
• I have the right to be quarantined in a hygienic state
• I have the right not to be stigmatised
• I have the right to get a proper place to live with all facilities required with a one to one toilet facility
• I cannot be marked on my hand with a voting ink. Even prisoners have a right not to be handcuffed
• If I am home quarantined, I cannot be stamped on my hand and wherever I go, I cannot be subjected to checks
• If I am not having symptoms, I should be able to get a test done in six days as the mean incubation period is six days
• I have a right to be isolated in a single room if I am infected or at risk of infecting others
• I have a right to age-specific cohort quarantine if multiple people are quarantined together. On the Diamond Prin­cess ship, which was quarantined off Yokohama, Japan, 3,700 people were cohort quarantined together. This led to 23 percent of them getting infected and seven dying. If the quarantine had been as per age and individual risk, more wo­uld have been saved.

Quarantine should not end in anxiety. A recent study from The Lancet notes that the psychological impact of quarantine without proper counselling can be great, resulting in a range of mental health concerns from anxiety and anger to sleep disturbances, depression and post-traumatic stress disorder (PTSD). Separate studies of quarantined patients of SARS, a previous coronavirus outbreak in 2003, found between 10-29 percent suffered from PTSD.

The Lancet’s report found mental health concerns could be inflamed by stressors associated with quarantine such as infection fears, frustration, boredom, inadequate supplies, lack of information, financial loss and stigma associated with contracting the disease. That can be an issue not only for people with pre-existing mental health concerns, but also those in seemingly good psychological health.

The Centers for Disease Control and Prevention in US notes that people should look out for signs of distressed mental health in themselves and others. Symptoms may include: Fear and worry; changes in sleep or eating patterns; difficulty sleeping or concentrating; worsening of chronic health problems and increased use of alcohol, tobacco, or other drugs. Recognising the problem, the WHO released guidance on how people can protect their mental health during the outbreak.

Prolonged quarantine or social isolation (without compensatory methods in place) will exacerbate anxiety, depression and a sense of helplessness.

Dr KK Aggarwal

President CMAAO, Past National President IMA