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Can a pandemic ‘COVID19’ be a ground to declare Health Emergency?

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The outbreak of COVID- has had far-reaching consequences all around the worlds. The turmoil associated with the pandemic has affected the different spheres of life – economic, financial, political, educational, travel and tourism, aviation, most of all the health of citizens and the healthcare resources of the country.

Drastic prohibitory measures are being taken by both the Central and the State Governments in India to limit the spread and transmission of the virus to more people. Even these measures have not been able to ensure a total compliance by the citizens of the Country. The question here however remains if India has enough healthcare laws to demand strict compliance, as is required in the present situation.

The primary law that Indian State governments have been resorting to recently is a 123 year old law from the British era, known as The Epidemic Diseases Act, 1897, formed to provide for prevention of the spread of dangerous epidemic diseases, and consists of only four sections. The State governments have used this Act to pass orders restricting movement in wake of outbreak of Coronavirus, and the same act has also been invoked in the past by the States to control the spread of H1N1(swine flu) and other such diseases.

The Act empowers the state and the central governments to take measures as necessary to control further spread of the disease. Section 2 of the Act says that state government can measures if its satisfied that it is threatened by an outbreak and ordinary provisions of law are insufficient. Section 2A gives power to the Central Government to take measures of inspection in such situations, and even detain persons if necessary.

Other than absence of a more recent statute to govern protection and regulation against spread of such pandemic diseases, another trouble that India faces is the inability of Centre to impose laws and regulations regarding healthcare on the States, owing to the federal structure of the Indian democracy and the fact that ‘public health’ is listed in the State List in the Seventh Schedule of the Constitution.

The Epidemic Diseases Act, however, can only help the government in a brief manner, when inspection or quarantine or penalty has to be imposed, but do our present legal provisions or our Constitution allow the Government to take more serious measures if this worsens? The important question here is, in a situation where our Country might need to be prepared for the worst, can the Central Government declare a health emergency in India, under the present laws and the Constitution of the Country. Can a pandemic or an epidemic be a ground to declare emergency?

The provisions regarding proclamation of emergency find place under the Article 352 of the Indian Constitution. An emergency under this Article could be declared on the grounds of war, external disturbance and internal disturbances originally. The term internal disturbance was a flexible term broad enough to include disturbances caused in the country due to an epidemic.  This word ‘internal disturbances’ was replaced with the term ‘armed rebellion’ by the 44th amendment to the Constitution, but not from Article 355.

Article 355 of the Constitution places a duty on the Union Government to protect all States against external aggression and internal disturbance, and ensure that the government of the States are carried on in accordance with the Constitution.

Article 353 includes the effect of proclamation of emergency, and permits the Central Government to direct State on how to use its executive power, and the Parliament to make laws on matters from the state list. During an emergency, the freedoms provided under Article 19 are suspended and so is the enforcement of fundamental rights (under Article 358 and 359 respectively).

The Chairman of the Drafting Committee in the Constituent Assembly had explained the underlying principle of Article 355 and had stated that the Constitution under provisions for emergency provides the Central Government with some overriding powers , and the use of that power or ‘invasion’ by Centre of the Provincial field . Therefore introduction of Section 355 casting a duty on Union to protect the State was essential to prevent such unprincipled invasion.

The Report of the Sarkaria Commission on the provisions of the Constitution had stated with reference to the Emergency provisions that   :

“The Constitution-framers conceived these provisions as more than a mere grant of overriding powers to the Union over the States. They regarded them as a bulwark of the Constitution, an ultimate assurance of maintaining or restoring representative government in States responsible to the people. They expected that these extraordinary provisions would be called into operation rarely, in extreme cases, as a last resort when all alternative correctives fail.”

The Report had also stated that the term internal disturbances’ has a broad scope and an internal disturbance can be Nature-made, also. Natural calamities of unprecedented magnitude, such as flood, cyclone, earth-quake, epidemic, etc. may paralyse the government of the State and put its security in jeopardy.

“Under Article 355, a whole range of action on the part of the Union is possible depending on the circumstances of the case, the nature, the timing and the gravity of the internal disturbance. ”

Therefore, according to the Indian Constitution a Health Emergency being invoked the Central Government, though not covered by Article 352 which deals with proclamation of emergency on grounds of war, external aggression and armed rebellion, but could be covered under the parasol of internal disturbance.

-By Srishti Ojha

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