The executive response to the COVID-19 emergency and the issue of protecting rights : The same old South Asian story

[Extract] The enormity of the threats posed to life of a nation and its subjects by grave crises, such as war, external aggression, armed rebellion, natural disasters or financial instability, often persuades the executive to declare a state of emergency. The objective
underlying such a declaration is to enable the executive to take prompt preventative
measures for restoring normalcy.1 These measures include, more significantly, the
suspension of the enforcement of some, majority or all of the fundamental human rights of individuals. The extraordinary move of imposing restrictions on rights is sought to be justified by reference to the fact that if certain rights, such as those relating to liberty, movement, thought, conscience and speech, are allowed to be enjoyed in an unrestrained manner, then they would have the impact of unjustifiably impeding a government’s ability to effectively contain the grave threats posed to the survival and integrity of the state.2 However, the restrictions imposed on the liberties of individuals must be proportional to the emergency facing the nation both as a ‘matter of degree and duration’.3 In fact, the international human rights norms developed in 1950s and thereafter also recognise this reality by recognising the principle of proportionality. These norms also recognise the fact that there are some human
rights which are too ‘fundamental and too precious’, and, hence, they should not be
suspended even during a state of emergency

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