Legally unsustainable?

National Disaster Management Authority (NDMA) passed several notifications to enforce provisions of the Disaster Management Act, 2005 and several states have also notified the Covid-19 Regulations, 2020 under the Epidemic Diseases Act, 1897

Legally unsustainable?

Migrant labourers wait near their bags placed inside circles marked along a road to maintain social distancing as they wait to board the specially arranged government bus to return to their homes during a government-imposed nationwide lockdown as a preventive measure against the COVID-19 coronavirus, in Kolkata. (Photo by Dibyangshu SARKAR / AFP)

The present lockdown first came in the form of a janata curfew on 22 March following the request made by the Prime Minister; then the 21-day lockdown announced via his address to the nation on 24 March, and before the expiry of that lockdown, through another broadcast on 14 April and until 3 May 2020.

Simultaneously, the National Disaster Management Authority (NDMA) passed several notifications to enforce provisions of the Disaster Management Act, 2005 and several states have also notified the Covid-19 Regulations, 2020 under the Epidemic Diseases Act, 1897.

They have also passed restrictive orders under Section 144 of the Code of Criminal Procedure, 1973 to enforce wide-ranging restrictions on the exercise of various fundamental freedoms as on assembly, movement within the state and interstate, to carry out trade and occupation of choice, and also the right of an individual to practice religion at religious places as provided in Part III of the Constitution of India. The present laws which enforce a county-wide lockdown in India to contain the spread of Covid-19 are either inadequate or obsolete to deal with the current situation and can lead to successful challenges in courts.


Article 352 of the Constitution

The Constitution of India was made after studying constitutions of many countries and borrows several concepts from such constitutions. Part XVIII of the Constitution deals with the different emergency situations in the country such as national, state and financial; some concepts in this Part were taken from the constitution of the erstwhile Weimar Republic. The Constitution however does not provide for a health or medical emergency in the country and therefore in the absence of it, one could debate that Article 352 could have been invoked to deal with the current situation.

The Government was prudent in not doing so for several reasons; one of those could have been that Article 352 in its present form only deals with war, external aggression or armed rebellion and therefore this virus outbreak would not have legally justified its invocation. Non-invocation of Article 352 has already set an exemplary precedent of cooperative federalism between the Centre and some states, especially when in recent times we have noticed extremely divergent stands of Centre and some states in issues of demonetisation and implementation of the Citizenship (Amendment) Act, 2019.

The Disaster Management Act, 2005

The NDMA has notified certain sections of the DM Act through series of notifications starting 24 March onwards to operate all over the country in order to contain Covid-19. However, a careful reading of section 2 (a) which defines ‘affected area’ as ‘an area or part of the country affected by a disaster’, clearly indicates that it refers to a specific area or specified area and does not envisage a simultaneous operation in the entire country. In the same section, ‘disaster’ is defined (Section 2 d) as ‘catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or manmade causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area’.

This elaborate definition does not cater to public health emergencies, which could have given legal tenability to those notifications. Interestingly, the expression ‘public health’ is provided for under the State List of the Seventh Schedule of the Constitution, which is found in Item 6 which reads as ‘Public health and sanitation; hospitals and dispensaries’ and therefore NDMA’s notifications could be deemed to encroachment on the State’s powers. It may be argued that the DM Act is legally adequate to deal with the containment of Covid-19 and therefore the NDMA or the National Executive Committee have their respective powers under sections 6 and 10 of the Act. Presently, such measures are in contradiction with the legal obligations of the National Executive Committee under Section 11 of the DM Act, which is a mandatory provision and provides for drawing up of a National Plan in consultation with state governments and other expert bodies in the field of disaster management.

Such a National Plan is yet to be drawn up despite the lockdown since 25 March.

The Epidemic Diseases Act, 1897

After the announcement of the lockdown, several state governments passed the Covid-19 Regulations, 2020 under the ED Act, 1897. The shortcomings of the ED Act can be highlighted while dealing with the Section 2, which provides for the exercise of powers in order to either take special measures or prescribe regulations in an event of an outbreak of ‘dangerous epidemic disease’. This legislation, however, does not define the expression ‘dangerous epidemic disease’.

Another criticism of the ED Act is that the power it gives to concerned governments under sections 3 and 4 may not today pass the test of constitutionality or the adherence to certain basic criminal law principles. The Act certainly lacks legal force to contain a country-wide spread of Covid-19, when the reason to bring the Act was to deal with a regional outbreak of the bubonic plague in Bombay in 1896 and perhaps similar situations in future.

The provisions of the Act are also oblivious of modern realities as it only deals with ‘ship or vessel leaving or arriving at any port’ and ‘railways’ in its provisions unlike most provisions of the Indian Penal Code, which is functioning in its original form since 1862 but passes the test of modernity. The ED Act was intended to be repealed by the Public Health (Prevention, Control, and Management of Epidemics, Bio-terrorism and Disasters) Bill in 2017 but even that Bill did not consider a ‘pandemic’ such as the present one. Most importantly, it is yet to be passed by Parliament.

(The writer is a New Delhi-based advocate)