Constitutional Response to Corona Virus Pandemic in India

I. Introduction

This ongoing crisis of corona virus all over world has been declared as pandemic due to its alarming inaction. This outbreak of COVID-19 has been firstly identified at Wuhan, China and very soon the whole world got engulfed in crisis. According, to World Health Organization this sudden outbreak has lead to declaration of Public Health Emergency on International Concern. It has immensely created the economic turmoil all over the world.

This is the first time after the independence, that our country is facing such a health crisis that the whole country has completely halted. Due to this unpredictable outbreak, several safety majors has been prescribed by World Health Organization and country itself taking due majors to overcome this. The pandemic COVID-19 has caused great loss to life and has particularly affected the country with huge population and which has been failed to control its spread. India being vulnerable, the government acknowledging the magnitude of the situation has decided o declare a nationwide lockdown. To curb the spread of corona virus, the government has declared nationwide “lockdown” for 21 days which has further extended due to its increasing cases. Considering the situation, National Disaster Management Authority has issued several guidelines to fight against this “disaster” which come within the ambit of DMA. The guidelines included the closure of all non- essential government institutions, educational centre , gathering at temples, public malls, air transportation, railways and roadways, private organizations, political gatherings etc. these measures has been forwarded to states and union territories by the central government. At some places section 144 of CrPC was imposed, prohibiting the gathering of four or more people.

The nationwide declaration of lockdown has affected everyone’s life to a great extent. This step has been taken to curb the chain of corona virus but this has brought the life to standstill. The question here is, even though the declaration of lockdown is done to protect or save the life but is this constitutionally valid to do so? Thousand people’s life has been affected, both their freedom of movement as well as freedom to carry on trade. In the meanwhile where whole country has been standstill due to pandemic corona virus and trying to maintain social distancing, the state government and the central government are advising to work from home. While the employees from private and commercial sector can work effectively from home but what about those daily wage workers who are dependent on the daily labor for their livelihood. Where the right to life under Art 21 has no significance without right to livelihood, these workers are fighting for their livelihood. Though, there is violation of some of the fundamental rights of the citizen but is it constitutionally valid to-do so? So, the answers of these questions will be discussed one by one further and will look after the constitutional response of our government toward this pandemic corona virus.

II. Constitutional validity

The Prime Minister on 24^th March declared nationwide lockdown for 21 days in the backdrop of COVID-19 outbreak with the intention to maintain the “social distancing” to prevent the spread of corona virus. However, many of us would have remembered that how in wakes of the felling of the World Trade Center, U.S.A, due to terrorist attack, has compelled America to adopt the severe Patriot Act, 2001, for the sake of a country’s security.²The Indian government too has taken severe step in the fight against corona virus to safeguard the health and life of the people. The Ministry of Home Affairs has invoked Section-6 (2)(i) of the Disasters Management Act, 2005, restricting the people’s movement outside their homes and closure of the all government, private and commercial offices, educational institution, religious gathering, shops except those considered as essential goods and services.

While the step has been taken by the central government, to pass an order of such a nature, has overstepped the state government’s authority. Since, the ‘public health’ is a subject of a state list enshrined under constitution. So, the question here is the whether the order given by the central government is in conformity to the constitution as public health is a subject-matter of state list.

So, the answer to the question is simply yes. Public Health is a subject of under state list and the state has been empowered to deal with matter related to public health and order; yet, lockdown declared by the central government is constitutionally valid. In India, the power has been distributed between the central and the state government due to its federal nature. The Scheduled- VII of the constitution defines the subject on which the laws can be made by the central and the state government. Article 246 provides the “distribution of legislative powers” between the central and state government. List-II that is state list provides about the matters on which the state government has exclusive power to legislate, whereas List-III talk about concurrent list on which both the central and the state government have power to legislate.

The corona virus outbreak has proved to be epidemic, causing loss to millions of life globally. Under the Schedule VII, the issue related to epidemic falls under two head; 'Public Health' which exclusively comes under the ambit of state government and 'Prevention of the extension from one state to another of infectious or contagious diseases or pests ' which falls under concurrent where central government as well as state government can legislate. Entry 1 and 6 under List-II empowers the state to legislate on matter of public health whereas Entry-29 under List-III empowers both central and state government to act effectively. The entry does not limit the power of central and state government to legislate on the matter of public health but also empowers them to legislate a proper law so to as prevent the spread of disease.

The Epidemic Disease Act, 1897 was a short legislature which empowered the Governor General to enact temporary regulations to prevent the outbreak of epidemic diseases. By the amendment in 1937, the state government has been empowered to enact the laws with the object to provide for better prevention of the spread of dangerous epidemic disease; whereby granting very limited power to central government, related to inspection of vessels on ports. It is surprise to note that the law is applicable even today and has been invoked in the wake of pandemic novel corona virus. Section- 2 of Epidemic Disease Act, 1897 states that if the state is unsatisfied with the ordinary provisions of the law dealing with the epidemic disease or thinks it to be insufficient for the purpose, have power to take special measures and guidelines so as to prevent the outbreak of such epidemic disease. The state governments has invoked the others acts and laws, addressing their concern regarding the spread of corona virus. Some example of enacted laws by the state within their territory in regarding to public health is Madras Public Health Act 1949, Tamil Nadu Public Health 1939, Goa and Daman & Diu Public Health Act 1985. There are certain drafts of bills, which have been proposed such as Kerala Public Health Act 2009, Gujarat public health bill 2000, Karnataka Public Health Bill 2020. These acts contain provisions regarding: isolation of affected person, up to date notification about infectious disease, provisions relating to indigent persons who cannot afford treatment, disposing the bodies of person died due to infectious disease.

Consequently, to deal with the outbreak of pandemic corona virus in India, the Ministry of Health and Family Welfare, has given guidelines to state and Union Territories to invoke the Epidemic Disease Act 1897, regulating the government advisories. The state, while exercising their power under the Act of 1897, issued the Epidemic Diseases COVID-19 Regulations 2020. This regulation was followed in the state of Karnataka, Haryana, Maharashtra and Delhi. The Delhi government has notified the Delhi Epidemic Diseases COVID-19 Regulations 2020, following the Act of 1897. Some of salient features of regulation are; recording the travel history of symptomatic person, prohibition of direct testing of COVID-19 by private laboratories, right to impose home or institutional quarantine, right to coercive surveillance³. Though these law help to control the rapid spread of disease and serve the central government in dealing with the current crisis but we must not forget that these were pre constitutional laws and in post 1950, they infringe the vary feature of fundamental rights.

The act of 1897, examined above would no doubt help the state to a certain extent to carry on the inspection and restricting the movement of people outside their houses but however with the rising number of cases, the act is not feasible enough to tackle this alarming situation. Consequently, the central government while exercising their power has invoked the Disaster Management Act 2005, with object to effective management of disaster and matters incidental thereto. The act, provide measures to fight against the disaster and enables the central government to setup a National Disaster Management Authority operating at national, state and district level.

The aim and objective behind implementing the Disaster Management Act 2005, is to manage disaster including, preparation of mitigation, strategies, capacity- building and more. Generally, a disaster is referred to a sudden natural calamity bringing great loss or destruction to nature. However, Section-2(d) of DMA 2005, defines the meaning of disaster 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.”⁴ So, considering the current outbreak, central government has declared the corona virus pandemic as “disaster” as a ‘critical medical condition or pandemic situation’. The central government under the DMA has been given wide range of power to deal with the sudden outbreak by laying down certain policies, plans and guidelines, to ensure effective response to disaster and provide vast power to authorities comprising, restriction or control of traffic, people’s movement, making available of necessary resources, requiring experts and consultants in the field of disasters to provide advice and assistance for rescue and relief, procuring exclusive or preferential use of amenities, deployment of military forces. Whereas, Section-38 of DMA 2005, directs the state government to follow the directions of National Disaster Management Authority and disobeying of law will be liable for punishment.

In current scenario, where the corona virus case is at alarming level and has infected more than 25000 people, the DMA summoned by the central government and 1897 act by state government provides certain guidelines and measures to fight against the pandemic. But such an approach by the government at both the level is substantially insufficient to tackle the public health emergency. Even invoking Epidemic Disease Act 1897, is in itself insufficient as it is outdated and needs a substitution by strong legislation to manage the exponential rate of pandemic. So, there is a need for a specific legislation which contains effective and drastic provision to tackle public health emergency at such a level.

III. Epidemic as a ground foe emergency

The second important question, where the situation of the country is getting worst day by day, can the central government declare a public health emergency in India, under the present laws and constitution of India. Can a pandemic or epidemics be a ground to declared emergency?

The provision related to proclamation emergency of is guaranteed under Article-352 of the Indian constitution. If authorizes the president of India, to declare the national emergency on the ground of war, external aggression and internal disturbance originally. The term internal disturbance has been a flexible and broad that can be subjected to abuse by a tyrannical ruler. As in 1975, Indra Gandhi invoked internal disturbance as a ground to impose emergency which led the Janta Party which come into the power in 1977, to introduce the 44th amendment to the constitution. The word “internal disturbance” was replaced with the term 'armed rebellion' by this amendment.

Article -352 states the effect of proclamation of emergency, and permits the central government to direct state on how to use in executive power, and parliament to make laws on matters under the state list. It is in due power of the president to suspend the freedom provided under Article- 19. i.e. freedom to more freely, freedom to carry on trade, business etc and so is the enforcement of these fundamental rights.

The word 'armed rebellion' has substituted the word 'internal disturbance' through 44th amendment, but has not been removed from Article- 355. Where it states that it is duty of the central government to protect all state against the external aggression and internal disturbances and ensure that the government of the state are carried on in accordance with the provision of constitution. It was incorporated with an objective to justify the radical shift in the balance of center-state relation in context of emergency action.

Dr. B.R. Ambedkar, the chairman of drafting committee in the constituent assembly, has explained the rationale behind incorporating Article-355, considering the character of federalism embodied in the constitution. He stated that the center has been provided with overriding powers to interfere in the administration of provincial affairs, but invasion must be under the provision of the emergency. Therefore, Article-355 has contemplated on the part of the union to discharge its duty restricted to actions of emergency.

Whereas, the report submitted by Sarkaria Commission on the provision of emergency of the constitution, stated 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”.⁵

Tee report has further stated about the wider scope covered under 'internal disturbance' and it can be natural calamity or nature made also. The natural calamities are of unpredictable such as flood, epidemic, earthquake etc, may disable the state government in its machinery. The commission has also explained the principle behind Article-355 by starting that the center has not only empowered with the duties but has been granted with power to enact law and doing such acts and means which are signification for the effective performance of the duty. Article-355 covers the whole range of action that can be taken on part of union depending upon the circumstances of the case, the nature, the timing and gravity of the internal disturbance⁶.

Hence, it is not justified to say that Article- 355 only covers the action under Art.352 and Art 356. In fact, it provide a wider legal platform for the center justifying their actions in situation , which are not so grave as to declare emergency provisions but are of immediate and dire concern , so as to justified in taking any alternative constitutional and statutory measures. Therefore, in the current situation where the outbreak of COVID-19 is at alarming level needs a serious attention and measure to combat the pandemic. Though, a Health emergency invoked by central government is not covered under Article-352, which deals with the declaration of emergency on ground of war , external aggression and armed rebellion but could be covered under the parameter of internal disturbance .

Financial emergency:

In the wake of corona virus, where everyone is standstill, another question which comes into light is the declaration of financial emergency. A writ petition has been filed before the Supreme Court by the way of PIL, seeking for the production of a financial emergency. According to the petition, the lockdown declared by the centre, curbs the civil rights of individual evading the constituion. Perhaps, our Finance Minister, Nirmala Sitharaman, clears it by stating that "there is no move to impose a financial emergency as was declared by some reporters".

Article-360 empowers the president to proclaim a financial emergency on ground of threat to “financial stability and credit”. The president must be satisfied with the declaration on the aide and advice of the Council of Ministers. Though, the question raised in a plea was that can Supreme Court issue direction to the centre to impose financial emergency. The court can only ask the centre to reconsider its decision to declare an emergency but could not direct them to declare financial emergency. It only means that court could check the manner of taking decision to declare or not to declare financial emergency by center and considering the decision whether is is relevant or not or has been taken arbitrarily.

At present the whole world is facing serious economic instability due to outbreak of COVID-19. The finance minister of our country has clarified in her speed that there is no economic emergency in India, and soon relief package will be released dealing with the impact of corona virus pandemic on the economy.

IV. Conclusion

To conclude, I would like to draw attention of our government, towards the lack of strong and specific legislation to deal with public health emergency. We all are well versed with the outbreak of novel corona virus globally. It is one of the biggest health crisis confronted worldwide causing loss to millions of life. The outbreak has caused severe loss to socio-economic and financial stability to countries worldwide. Initially, the Prime Minister of our country has declared nationwide lockdown for 21 days, but with the degrading situation, the lockdown has been extended. This has been done to prevent its spread by breaking its chain and maintaining the social distancing and to get enough time to increase the rate of its testing.

The governments both at the centre and state level have prescribed the several guidelines and invoked the Disaster Management Act 2005 and Epidemic Disease Act 1897. Both the acts, first DMA 2005 invoked by the centre, considers the epidemic as a disaster and directs to follow accordingly, whereas, the EPA 1897 empowers the state to enact laws to tackle the epidemic. Both the acts have proved to be insufficient to combat such public health crisis and there is a dire need of a strong legislation regarding the same, which is still silent. The act should contain all the provision concerning the public health emergency. Where the whole world is going through economic crisis, the PIL was filed in the Supreme Court alleging the proclamation of financial emergency in our country. But the Finance Minister, Nirmala Sitharaman, has clarified that there wouldn’t be declaration of any financial emergency and soon the government will be releasing a relief package dealing with the impact of COVID-19 on economy.

Now, talking about the worst sufferers of the pandemic, they are the migrants, daily wage workers, laborers, vendor etc. They play the vital role in society by providing backbone to the every activity in industrial, economic and household sector. Now there existence and survival has come under threat due to lack of financial support and starvation, although several schemes and support has been provided by the central and the state government. Both the government at the centre and state level has failed to manage and provide proper support, compelling them to migrate to their native houses in villages and towns without any financial, food and transportation support. This has caused great destruction causing loss of many lives. On one hand where both the governments are busy in restoring the economy and creating green, orange and red zone, they lacked behind in arranging proper transportation to the migrants so that they could reach their homes with well furnished health measures.

As we all are aware that this is extremely high time, the country is going through and it our turn now to be more responsible and attentive in following the instructions to combat against the COVID-19. The government with their full efforts is providing instructions and guidelines through notifications that have to be followed properly. It’s our duty now to stick to these instructions and guidelines given by them in this extreme hardship and severe health crisis. Though, there has not been any strong and specific legislation to combat the pandemic, the government has invoked acts and laws to effectively manage the situation. But there is a dire need to legislate a strong legislation for public health emergency. So, that if may face any such situation again in future, we have strong machinery to fight against it. At last, we all should rise above all the malice and ill-will to countenance the change in our approach towards our life and livelihood due to this pandemic and take a small step in helping these migrants and poor dying of starvation.

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