Updated: Jul 28, 2020
This article has been authored by Devanshu Anada, a present third year student at Gujarat National Law University.
It was unimaginable for the government of most of the countries that a pathogen not even visible to a naked eye would have the 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 that this pandemic presented. The author will endeavour to critically examine the Indian legal framework as to whether it is equipped with necessary provisions to deal with the present situation.
A 21-day lockdown was imposed by the government through an order under the Disaster Management Act, 2004 (hereinafter ‘DMA’) which was further extended till May 3, 2020 by another order under the same act. This is 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, that does not mean that we should not examine the legal framework under which it was brought in as various fundamental rights are relinquished by the people for the public interest viz. Article 19 as a result of the measures taken by the government. So, it becomes a matter of concern to see whether the laws in force in India are well equipped to deal with this rapidly spreading pandemic.
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:
1. Section 188 IPC -Disobedience of 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.
2. 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.
3. 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.
4. 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, the consolidated guidelines by Ministry of Home Affairs mandate that any person violating the containment measures will be penalised 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 of 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 actions and the circumstances for which punishment is prescribed are likely to occur at the time of a disaster and not a communicable 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 has 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 the one at present.. The state governments have put in place lockdowns by utilizing the power conferred upon them by The Epidemic Disease Act, 1897 (hereinafter ‘EDA’) which is a century old colonial law containing four sections. section 2 of the act accords very narrow powers to the state government with respect to 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 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 ill-equipped 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 notified a 21-day lockdown by 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 extension of the said lockdown by another 19 days also was made under the same provision of DMA. 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 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 a 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 contentious 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 an order, it has no valid legal basis.
The most perturbing features of the guidelines/orders are that the executive has taken upon the role of the legislature to formulate laws 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 the legislations grant them emergency powers of limitless amplitude. This trend seen in the recent days, till it continues to be utilized for the welfare of the people may not lead to any difficulty but it may raise brows if used in a reckless fashion. Even an emergency when declared under Article 352 is guarded by parliamentary supervision as it needs to be ratified within a month by the parliament. This analogy makes it clear that the government cannot function by bypassing the constitutional mandate and such disregard may cause more harm than good to the people.
Lastly, if the present trend continues and the pandemic aggravates resulting into possibly more grave and unfortunate situations the future. These may require measures 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. for which there are absolutely no provisions in the DMA or EDA. The order issued by the MHA also does not provide for any restrictions for preventing people from stepping out of their houses. It only restricts the order to closure of establishments and suspension of services. Hence, the provisions of DMA are clearly neither adequate nor equipped to address the present situation of our country.
Conclusion – Is there a way around?
Presently, 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 pandemic. As the existing strategy of the government does not seem capable enough to effectively address the coronavirus pandemic, one may wonder if declaring an emergency might be the solution. At the same time, however 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 provide for appropriate 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 have been prescribed under any law for providing false details regarding 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 has been 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 manage 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 an ordinance under Article 123 till the parliament is not in session. Letting the government continue functioning under the DMA or the archaic EDA and depriving the people of their liberties as per creative interpretations of the law may lead to dangerous 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.”
This article was published on the Criminal Law Blog (NLUJ) and can be accessed here.