11 Jan 2020: The Hindu Editorial Analysis
1) On risk of international spread of poliovirus: A health emergency
- Based on the risk of international spread of poliovirus, the World Health Organization announced on January 7 that polio will continue to remain a Public Health Emergency of International Concern (PHEIC) for three months.
- The decision was taken based on the recommendation of the emergency committee under the international health regulations that assessed the situation last month. The committee arrived at the unanimous decision based on the “rising risk” of international spread of wild poliovirus type-1.
- Polio was declared as PHEIC in 2014 and has continued to remain one since then. There were 156 cases of wild polio type-1 cases in 2019 compared with 28 in 2018. With 128 cases, Pakistan accounted for the most number of cases, while Afghanistan reported 28 cases.
- Besides the four-fold increase in cases, there were instances of the wild type-1 virus getting exported from Pakistan to Iran and Afghanistan, as also on the spread from Afghanistan to Pakistan. In addition to the virus causing polio in children, it was found in the environment in Pakistan and, to a lesser extent, in Afghanistan.
- This is particularly a concern as the number of children not vaccinated in Afghanistan has been increasing. In 2018, a total of 8,60,000 children in Afghanistan did not receive polio vaccine due to security threats.
- The situation did not improve in 2019 and, as a result, a large cohort of children in the southern region of the country remains unprotected. Therefore, even other parts of the country that have been free of the virus in the past are at risk of outbreaks.
- An equally disturbing development is on the outbreak of vaccine-derived poliovirus cases in 16 countries; in all, there were 249 vaccine-derived poliovirus cases in 2019. Surprisingly, of them, only 30 were in countries where vaccine-derived poliovirus is endemic.
- “The rapid emergence of multiple circulating vaccine-derived poliovirus type-2 strains in several countries is unprecedented and very concerning, and not yet fully understood,” the committee noted. But, not a single case of vaccine-derived poliovirus was reported from Afghanistan, while Pakistan had just 12 cases.
- In comparison, the number of cases in Angola was 86 and the Democratic Republic of the Congo was 63. While Nigeria reported 18 cases of vaccine-derived poliovirus, not a single case of wild poliovirus type-1 has been reported from the country for over three years; the last reported case was in August 2016.
- A country is said to have eradicated polio when no new case of wild poliovirus is reported for three successive years. Nigeria is all set to be declared as having eradicated polio this year, and in turn, the entire African region will become free of wild poliovirus.
2) On validity of J&K curbs: Eloquently reticent
- If enunciating the law and laying down norms for the exercise of executive power were the only functions of a constitutional court, the Supreme Court’s verdict on the prolonged lockdown in Jammu and Kashmir (J&K) is indeed admirable.
- However, the apex court is also a court of justice, one duty-bound to enforce fundamental rights. It cannot limit itself to opinions on the extent to which those rights can be restricted. It has to give effect to the principles it enunciates and rule whether the state violated the fundamental rights of its citizens.
- The disappointing aspect of the verdict is the court’s failure to give a ruling on the validity of the government’s actions. It fails to hold the government to account for the manner in which it exercised its powers. It states categorically that an indefinite ban on the Internet is impermissible, but fails to direct the restoration of services.
- When it says Section 144 of the Code of Criminal Procedure “cannot be used as a tool to prevent the legitimate expression of opinion or grievance or exercise of any democratic rights”.
- It makes a comment worthy of being treasured in these times of frequent resort to that section. Yet, the court does not go beyond directing the authorities to review all their orders and restrictions forthwith.
- There are indeed valuable takeaways from the judgment. A key holding is that the use of the Internet as a medium for free speech as well as for trade and commerce is constitutionally protected.
- It also lays down that any reasonable restriction on fundamental rights, be it an Internet ban or a Section 144 order, will have to survive the test of proportionality, that is, the restriction should be proportionate to the necessity for such a measure.
- At the same time, it cautions against the “excessive utility” of the proportionality doctrine in matters of national security. Of great value to future challenges to executive action is the principle that there can be no ‘secret orders’.
- The government is bound to publish all orders it passes regarding such restrictions so that they can be challenged in a court of law. It is here that the verdict acquires another unusual character.
- Having rejected the government’s stand that it could not produce all the orders on the restrictions imposed since August 4, 2019, the court fails to strike them down on that ground.
- After all, it concurrently says every order imposing a restriction should state the reason, the exigency that necessitated it and the features that make it clear that it is the least intrusive measure.
- While ruling against indefinite Internet bans, SC fails to decide on the validity of J&K curbs. The absence of such order in the public domain is evidence that the state failed to demonstrate its necessity.
- It is a sign of the success of the ‘national security’ narrative that undergirds the government’s position on J&K that an apex court judgment in a fundamental rights case appears to have the character of an advisory opinion.