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COVID-19 Crackdown: How Far Can the Government Go?

Do legal provisions or the Constitution allow the government to take more serious measures than a 21-day total lockdown if the COVID-19 situation worsens? Is this ground to declare an emergency? By Srishti Ojha

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For the first time in India’s history, a 21-day total lockdown has been imposed to fight the deadly COVID-19 pandemic. On March 24, Prime Minister Narendra Modi announced measures to curb the spread of this virus among India’s 1.3 billion population. He also stated that this lockdown would be curfew-like.

The outbreak of this virus has had far-reaching consequences all around the world and affected different spheres of life—economic, financial, political, educational, travel and tourism, aviation and most of all, health.

Drastic prohibitory measures have been taken by both the central and state governments to limit the spread and transmission of the virus. But even these measures have not been able to ensure total compliance by citizens. In fact, soon after the prime minister’s speech, visuals of people crowding around shops to buy essential supplies were seen, defeating the very purpose of the curfew. The question then is whether India has enough laws to demand strict compliance as is required in the present situation.

The 21-day lockdown was imposed by invoking the National Disaster Management (NDM) Act, 2005. The Union home ministry has also issued regulations to ensure strict compliance and enforcement of the lockdown invoking the same Act, the violation of which can result in imprisonment of up to two years.

The objective and purpose of the NDM Act is to manage disasters, including preparation of mitigation strategies, capacity-building, etc. The Act defines a disaster as a “catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or manmade causes”. The definition also states that the disaster should have resulted in “substantial loss of life or human suffering or damage to property and environment to such an extent that it is beyond the coping capacity of the affected area”.

The centre has declared COVID-19 as a “notified disaster” and as a “critical medical condition or pandemic situation”. This will allow the government to use the National Disaster Response Fund to contain the rise in COVID-19 cases and to make policies at the national, state and district levels.

Before the complete lockdown was announced, partial restrictions were imposed by state governments in the last two weeks on the centre’s direction. These lockdowns were imposed by invoking the 123-year-old colonial-era law, the Epidemic Diseases Act, 1897. They included Punjab, Nagaland, Maharashtra, Delhi, Uttarakhand and Telangana. Partial lockdowns were also imposed by Chhattisgarh, Uttar Pradesh and Goa.

The Epidemic Diseases Act was meant to prevent the spread of dangerous epidemic diseases and consists of only four sections. The centre had already advised states to use it to make their coronavirus advisories more stringent. It was used by states to restrict movement of people.

This law has been invoked in the past too by states to control the spread of H1N1 (swine flu) and other such diseases. Maharashtra invoked this Act in 2009 to combat the outbreak of swine flu and Chandigarh to control dengue and malaria in 2015.  The Act empowers the centre and state governments to take measures to control further spread of the disease. Section 2 of the Act says that when the centre “is satisfied that India or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease and that the ordinary provisions of the law for the time being in force are insufficient to prevent the outbreak of such disease”, it may take measures and prescribe regulations. Under this Section, Delhi and Himachal Pradesh announced the Delhi Epidemic Diseases COVID-19 Regulations, 2020, and the Himachal Pradesh Epidemic Disease (COVID-19) Regulations, 2020, respectively. Maharashtra too announced the Maharashtra COVID-19 Regulations, 2020.

Section 2A of the Act gives power to the central government to inspect (any ship or vessel) and even detain persons if necessary. Section 3 makes it a criminal offence to disobey any regulation or order under the Act.

The punishment is in accordance with Section 188 of the Indian Penal Code, which provides for simple imprisonment of one month and a fine of Rs 200 for violating an order of a public servant. Imprisonment of six months and a penalty of Rs 1,000 can also be imposed depending on the impact that the disobedience has.

Other than the fact that there is no recent statute to govern protection and regulation against spread of such pandemic diseases, there is also the inability of the centre to impose laws and regulations regarding healthcare on states. This is owing to the federal structure of 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 a little when inspection, quarantine or penalty has to be imposed. But do legal provisions or the Constitution allow the government to take more serious measures if the situation worsens? Can the centre declare a health emergency in India? Can a pandemic or an epidemic be a ground to declare an emergency?

The provisions regarding proclamation of emergency can be found under Article 352 of the Constitution. It says that an emergency can be declared on the grounds of war, external disturbance and internal disturbance. The term internal disturbance was a flexible term broad enough to include disturbances caused due to an epidemic. “Internal disturbances” was replaced with “armed rebellion” by the 44th amendment to the Constitution, but not in Article 355.

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

Article 353 includes the effect of proclamation of emergency and permits the central government to direct a state 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 Articles 358 and 359 respectively).

The chairman of the Drafting Committee in the Constituent Assembly had explained the underlying principle of Article 355 and 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 the centre of the Provincial field (state). Therefore, introduction of Section 355, casting a duty on the Union to protect a 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 emergency provisions: “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 it can be nature-made also. Natural calamities of unprecedented magnitude such as floods, cyclones, earthquakes and epidemics may paralyse the government of a 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 Constitution, a health emergency being invoked by the centre, though not covered by Article 352 which deals with the proclamation of emergency on the grounds of war, external aggression and armed rebellion, could be covered under internal disturbance.

India has a plethora of laws and guidelines, but there is still a need to strengthen its legal framework to deal with such an emergency, including coordination and implementation issues. This is especially so considering that the main legal weapon the government possesses today to deal with COVID-19 is the Epidemic Diseases Act, a law of colonial vintage, and the Disaster Management Act of 2005 which does not incorporate the specific approach required to deal with an emergency of such severe proportions.

Lead picture: UNI

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