This article is written by Devanshu Anada. The article revolves around the pandemic of Coronavirus and whether the Indian legal provisions are capable of handling with this pandemic or not.
It was unimaginable for the government of most of the countries that a pathogen not even visible to a naked eye would have a potential to bring even the most developed countries down to their knees and their economies to a virtual standstill. As unprepared the immunity system of our bodies was to the Novel Coronavirus, more unprepared were the legal systems of many countries including India to deal with a grave situation of a pandemic. The author will endeavour to critically examine the legal framework within which India is dealing with the said pandemic and whether it is equipped with necessary provisions to deal with the present situation.
A 21-day lockdown imposed by the government through a order under the Disaster Management Act, 2004 (hereinafter ‘DMA’) however a laudable step to curb the spread of the pathogen, it raises several questions as to the legality of the same. The lockdown enacted through the said notification is although in the best interests of the people and it seems to have public and political consensus, it does not mean that we should not examine the legal framework under which it was brought in and whether it stands the test of the constitution as the freedoms once relinquished are difficult to get back. More importantly, the matter of concern is whether the laws in force in India are well equipped to deal with this rapidly spreading pandemic.
Legal Issues surrounding the Lockdown
The Fundamental Rights which are suspended as a result of the lockdown put in place are that of Article 19(1)(d) and Article 19(1)(g) of the Indian Constitution which are freedom to move freely throughout the India and freedom to practise any profession, trade or business respectively. It also affects Article 21 as the right to earn basic livelihood of the daily wage workers is taken away by enforcing a measure like this. According to the 2011 Census India has around 41 million migrant workers. It is true that reasonable restrictions in the interest of general public can be put in place by any existing law by the virtue of Article 19(5) and 19(6). Whether the said restrictions are reasonable or not and whether the suspension of certain fundamental rights by the government without declaring an emergency under Article 352 are matters of serious concern which may be addressed by the courts if the actions of the government are challenged.
After the 44th Constitutional Amendment Act, 1978, Article 21 cannot even be suspended even at the time of an emergency, then how can one justify suspending it on the basis of orders and guidelines under any Act. Moreover, Article 39(a) lays down an obligation upon the government to ensure that men and women enjoy adequate means of livelihood. The present lockdown can result into a situation which is contrary to such DPSP. It is also true that the union had a very little of a choice in imposing such a lockdown as the life of thousands if not millions were at stake and as it is laid down that “necessitas non habet legem” –necessity knows no law. But the question that now arises is even after the sacrifice of all such Fundamental rights whether the legal framework under which the government is at present operating is effective to lead India out of these dark and difficult times. This had been analysed in the following part.
Which laws are resorted to enforce Social Distancing and Lockdown Measures?
The lockdown declared by the government invoking the provisions of the Disaster Management Act, 2004 (which are critically discussed in the next head) is not the same as a curfew as the enforcement agencies like police cannot arrest any person without taking the permission of a competent court. The lockdown is however being enforced under various provisions of IPC like:
- Section 188 IPC – Disobedience to order duly promulgated by public servant. The punishment in cases where such disobedience causes danger to human life, health or safety the punishment is simple imprisonment extending to six months or fine extending to ₹1000. Section 3 of the Epidemic Disease Act, 1897 which is the penalty clause also directs that punishment be given under Section 188 in case of any violation of its provisions. The offence is cognizable and the police with the help of this section have been arresting persons violating the lockdown order by the Central government. One of the essentials for Section 188 IPC is that the public servant must be legally empowered to promulgate the order. The order that was passed under Section 10(2) of the DMA lack legal basis as the provision itself does not empower the government to pass such an order. This has been discussed in detail in the latter part of this paper.
- Section 269 IPC – Negligent act likely to spread infection of disease dangerous to life. The punishment is simple imprisonment extending to six months or fine or both.
- Section 270 IPC – Malignant act likely to spread infection of disease dangerous to life. The difference between Section 269 and 270 is that the act contemplated under section 270 must be done with an evil motive or with knowledge of the harm. The punishment prescribed is imprisonment extending to 2 years or fine or both.
- Section 271 IPC– Disobedience to quarantine rule. If a person were to escape from the quarantine imposed upon him by the public health authorities and he escapes such quarantine then he can be booked under this section. The maximum punishment is 6 months of imprisonment or fine or both.
Along with the said provisions as per the consolidated guidelines by Ministry of Home Affairs any person violating the containment measures will be proceeded under Sections 51 to 60 of the DMA. The said sections provide for, inter alia, punishment for false claim, false warning, obstruction in the work of a public servant and refusal to comply with the direction given by Central Government. The said sections of the DMA are virtually ineffective in addressing the issue and enforcing social distancing as well as other public health measures because of two reasons.
Firstly, the punishments provided in the said sections are disaster centric as it involves punishments for acts like false warning or false claim with an intention of obtaining relief assistance, repair, reconstruction, etc or punishment for misappropriation of materials meant for providing relief in a threatening disaster situation. All the circumstances for which punishment is prescribed are likely to occur at the time of a disaster and not an infectious disease outbreak. Therefore, as has been seen, the authorities have resorted to sections of Indian Penal Code for effecting arrests and punishing the outliers to enforce the quarantine and lockdown rules.
Secondly, Section 60 of the DMA provides that even for taking cognizance of any offence committed under the act, either the complaint needs to made by the National or State Disaster Management Authority or a notice of minimum 30 days have to be given to the said authorities. This can hinder the quick action which is crucial at the time of an epidemic. Thus, the punishments provided under the DMA have largely remained dormant and unused.
Ineffectiveness of existing Legal Framework to deal with the Pandemic in India
The Epidemic Disease Act, 1897
Aside from the punishments, what is to be seen importantly is whether the legal tools at the disposal of the government are sufficient to deal with an extraordinary and a testing situation like of now. The state governments have put in place lockdowns by utilizing the power conferred upon it by the Epidemic Disease Act, 1897 (hereinafter ‘EDA’) which is a century old colonial law containing four sections. In its Section 2 it provides very narrow powers to the state government regarding inspection of any person suspected of being infected with a disease and inspection of a ship or vessel arriving at any port. Various state governments have passed orders and issued guidelines under this very law viz. The Delhi Epidemic Diseases COVID 19 Regulations, 2020; the Maharashtra Epidemic Diseases COVID-19 Regulations, 2020, etc.
The archaic law does not even define the word “epidemic” leave alone specifying any effective containment measures to contain the same. It is understandable as it was enacted in a haphazard manner to control a bubonic plague outbreak in Mumbai in 1896 and to prevent people from gathering in large numbers. The regulations enacted under the act are clearly exceeding the scope of the act which may invite the doctrine of substantive ultra vires which may render the subordinate regulations as void. Without paying heed to the legal consequences the states are framing regulations one after the other to be followed by the people failing which punishment under Section 188 of IPC can be imposed on the violators. Thus, the EDA is a grossly unequipped legislation to effectively deal with the present situation.
Current Lockdown Measures and the Disaster Management Act, 2004
At the central level the government through the Ministry of Home Affairs has notified a 21-day lockdown by a passing an order exercising powers under section 6(2)(i) and have issued directions/guidelines under section 10(2)(I) of the Disaster Management Act, 2004. The section empowers the government to. “lay down guidelines for, or give directions to, the concerned Ministries or Departments of the Government of India, the State Governments and the State Authorities regarding measures to be taken by them in response to any threatening disaster situation or disaster.” The guidelines that are issued by the government inter alia provide for closing down of commercial and private establishments, suspension of transportation services, closure of places of worship, etc. It is evident that, the authority to lay down guidelines under section 10 is limited to directions to departments of government as seen in the text of the section quoted above and cannot be imposed upon private individuals or establishments. This puts all the orders passed by the government open to nullification under doctrine of substantive ultra vires.
This also puts a question on all the arrests being made by the police in the country under section 188 IPC because if the government was not legally empowered under section 10 to promulgate such an order the essentials of section 188 IPC as discussed previously do not get fulfilled. In fact, no such provision for imposing a control of this kind on private individuals, shops or establishments can be found in the DMA as the makers of the act never envisaged that this legislation would be resorted to at the time of an epidemic.
It all started when the Home Ministry declared the Coronavirus outbreak as a “notified disaster” under the definition of “disaster” as per Section 2(d) of the DMA. It is another question of debate that whether an epidemic caused due to spread of pathogen be included in the definition of a disaster to bring into play the provisions of the DMA but as it seems the government of India had a very little choice in doing so. The issue becomes contention when you take into account the order issued by Ministry of Home Affairs under DMA directing the landlords to not demand for rent for one month and the employers to make payment of wages during the period of lockdown. As noble and good the intention of the government maybe for issuing such order but it has no valid legal basis to emanate from.
The most perturbing features of the guidelines/orders are that the executive has taken upon the role to essentially legislate on certain matters under an Act which nowhere provides the executive the powers to do so. The DMA and EDA are being utilized by the government as if they grant them emergency powers to act of limitless amplitude. This trend seen in the recent days till it is being utilized for the welfare of the people may not lead to any difficulty but it may raise many brows if used in a reckless fashion. Even when emergency is declared under Article 352 there is parliamentary supervision as it need to be ratified within a month by the parliament. Running of the government as if it is operating in emergency by bypassing the constitutional mandate may cause more harm than good to the people.
Lastly, if the present trend continues as there are absolutely no provisions in the DMA or EDA to handle more grave and unfortunate situations if they were to arise in the future like direct appointment of medical staff without following the ordinary procedure, strict quarantine of any specific area, suspension of visas of certain suspected people, etc. The order issued by the MHA also does not provide for any restrictions for preventing the people from steeping out of the house it only restricts itself to closure of establishments and suspension of services because there are no such provisions in the DMA. Hence, the provisions of DMA are clearly not legitimate enough to address the present situation of our country.
Conclusion – Is there a way around?
Thus, the best tool the government has to address the situation is a 123-year-old law which was hurriedly drafted by the British and a law which was made with an object of disaster management having no provisions whatsoever to deal with a disease outbreak. As the existing strategy of the government are not seemingly capable to effectively address the coronavirus pandemic one may wonder if declaring an emergency might be the solution. But it is also not possible to declare an emergency as the present situation does not fall under war, external aggression or armed rebellion which are the key essentials when it comes to declaring an emergency under Article 352.
There is absolutely no existing framework of laws which prescribes for response measures in a public health emergency including distribution of vaccines or drugs and which provide for guidelines to be followed for contact-tracing, etc. No punishments or fine whatsoever has been prescribed under any law for providing false details regarding their travel history or adversely affecting the process of contact tracing by not disclosing correct information. Identifying and quarantining suspected cases and setting up a robust testing mechanism is crucial to overcome this epidemic as illustrated by South Korea and China.
There arises a need for a specific legislation to address an epidemic like situation. This need was recognised by the centre and Public Health (Prevention, Control and Management of Epidemics, Bio Terrorism and Disasters) Bill, 2017 was introduced by the parliament however it has not been ratified till date and the 1897 legislation still continues to be in force. The Public Health Bill, 2017 specifically aims to control and management of epidemics, public health consequences of disasters, acts of bio terrorism as evident from its object clause. The said bill can be effective as it provides checks and safeguards on the government as opposed to the guidelines/orders issued by the government as per its will. A law similar to this can be promulgated by the president in the form of ordinance under Article 123 till the parliament gets in session. Letting the government to continue function under the DMA or the archaic EDA and depriving the people of their liberties as per their creative interpretations of the law may lead to deplorable consequences.
We must remember that however noble the intentions of government maybe but as held by Lord Atkin in Liversidge v. Anderson, “Law speaks the same language in the times of war as it does in peace.”
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