The Colonial- Era Laws and Assessment Of Emergency Health Powers In India vis-à-vis COVID-19

Author: Muskaan Vijay National Law University, Odisha

With the world turning into the 21st century the various countries of the world have not only shown drastic changes in terms of technology, science, and infrastructure but also introduced numerous public health risks that led to the emerging of the various infectious diseases. All these diseases have shown its own unique and twisted characteristics that are completely heterogenic in nature and thus create complex situations and challenges in the lives of the public. But despite all this, the governments of these nations along with the confederate and state public health bureaus have tried to alleviate the spread of such diseases and the nation in every way possible.  One such disease that has made its way into the lives of people of almost all over the world off sprung from one of the busiest wet markets in the world from Wuhan, China. This is named as the Corona Virus or Covid-19, that first made its appearance in November 2019 and the world has been struggling with this kind of problem it has never seen before.

The COVID-19 has resulted in greater consequences all over the world and has greatly influenced the different aspects of life, affecting the economic, financial, political, and educational and on a greater and serious scale the health of the public draining the healthcare resources. The situation becomes more complex when most of the nations are under a lockdown to cope with the virus and have made it mandatory to practice social distancing. With respect to the number of cases in India, it has over 6,27,000 total registered cases and 2,47,000 active cases at present. COVID-19 struck India at the lower rate initially and it was the bona fide Action of the Modi government to put the nation under lockdown which did invite praise to the government but also made it difficult for people belonging to different sectors of the society to cope with the same. However the government has been trying its best to have strict compliance but, the main question is whether India has proper and appropriate healthcare laws to ensure the same?

The foremost law that the government has recourse to is the 123-year-old law, continuing since the pre-independence era, known as the Epidemic Disease Act (EDA), 1897. This is India’s sole law that has been functioning to limit the epidemics and curb the spread of various viruses. The EDA includes only four sections in the act with the objective of “better prevention of the spread of the dangerous epidemic disease”. The governments have used this act to give out the guidelines and restrict the movement in the country during the pandemic, omit one conjunction this one act might be inadequate to deal with it.

While the pandemic has hit almost all the countries of the world, other countries have far-reaching legislation to protect the health of the public, while India, on the other hand, has only the colonial period EDA, the section 144 of the IPC that restricts on public gatherings and the Disaster Management Act, 2005. This act empowers the central and the state governments to resort to “exceptional measures and prescribe regulations” for the well-being of the public and to stop the transmission of the disease.[1] Overall these years there had been no amendments or changes made in the act that includes the restrictions on travel, quarantine and the testing of the persons in congruence to the Section 188 of the IPC that states the disobedience of the government orders.

The EDA was put to effect in India on 4th February 1897, when the disastrous bubonic plague was found to be putting the public health at risk. The EDA being compact in nature fails for the current situation for three reasons – firstly, it does not mention terms such as “dangerous”, “infectious” or “contagious disease” let alone an “epidemic”.[2] It does not mention any particular procedures that are to be taken by the government to state when a disease becomes an epidemic for the nation and remains silent on the categorization of an epidemic as dangerous. Secondly, the act is silent about the isolation methods and the other prevention measures required curbing an infectious disease. Lastly, it does not outline the universal principle of human rights that needs to be observed or protected during the times when an epidemic is declared.

The antiquated character of the EDA also becomes more evident when the act is read with the currently relative Disaster Management Act, 2005. The DMA provides vast options to curb disasters, by establishing a system where all the institutions of the government can work cooperatively on the national as well as local levels. Accordingly, the DMA also has been given powers to control situations like controlling the movements of the people, traffic, provide assistance and relief, coordinating with other countries etc. It also formulates a structured plan for all levels of the society any person not complying by these are directly liable to the DMA.

 As DMA seems to resolve the problems that EDA could not do, it does have some problems that cannot be ignored.  Firstly, disaster under DMA may be elastic enough to include a pandemic, it still does not mention about the unique situations that are thrown at the public during an epidemic nor does it include the basic steps that are to be taken during such health emergencies. Any endemic of such a disastrous nature requires a proper plan of action and legislation. Secondly, considering the rate at which the Covid-19 is growing all over the nation, the extraordinary combative measures that are provided in the DMA may be inadequate in dealing with such an epidemic. Therefore, even more, extreme and serious measures must be taken in such situations. When an ultimate solution is needed, India with these weak legislative structures would find it hard and intimidating to enable a legal substructure that will be efficient in keeping the public under lockdown, in quarantine and temporary closure of the business.

This raises a legal irregularity and with very less or no legal backup, the government will eventually have to settle down for the Section 144 of IPC and other drastic measures. But again what happens to the nation when the situation of Covid-19 worsens even more as India is not ready for the worst. Thus, setting forth the constitutional directive and taking more drastic steps to guide us to the emergency provisions. But can a pandemic be a ground to declare an emergency in the nation?

The emergency provisions are mentioned under Article 352 of the Indian Constitution and an emergency can be announced on the grounds of war, external aggression and internal disturbances initially. Under article 353 the central government has the power to direct the states on the usage of executive powers and empowers the parliament to make legislation and laws on the matters under the state list. However, when an emergency is proclaimed Article 358 suspends the article 19 and Article 359 suspends the enforcement of fundamental rights altogether.

The term ‘internal disturbance’ was flexible enough to include epidemics as one of the grounds but after the 44th amendment, it substituted the term with ‘armed rebellion’ and exposed too many problems following it. In the Sarkaria Commission report, the term “internal disturbance” meant more than just internal violence. It stated that such internal disturbance may be attributed to nature made disturbances that include epidemics puts the government in danger and paralyzes the whole institution. The term internal disturbance was replaced in Article 352 and still has its presence in Article 355, which places a duty on the central government to protect all the states against external and internal disturbances. Under Article 356, the constitution provides for the proclamation of emergency when there is a breakdown in the constitutional machinery.

The committee reported that merely a physical breakdown can result in a constitutional breakdown and provides that even an epidemic that hampers the government’s functioning is an example of breakdown and empowers the government to deal with such internal disturbances. Therefore, during such tense situations of massive lawlessness amidst coronavirus, the same can be an internal disturbance to proclaim an emergency under Article 355 and therefore health emergency being proclaimed by the union can be considered to be under the internal disturbance.

Most of the nations currently grappling with Covid-19 have already declared it as a health emergency in their country and are taking measures to curb the same. The existing lacunae in the legislation provide how India is not fully equipped with the legal framework to fight a pandemic such as COVID -19. Without proper health emergency laws and the government resorting to Section 144 of IPC, India’s situation would be uncontrollable if the pandemic worsens. Once this subsides, it is the duty of the lawmakers to make changes to the colonial legislation and incorporate new laws that would address the health emergencies that India might face in the future in a much effective manner.

[1] Manish Tewari, India’s Fight against Health Emergencies: In Search of a Legal Architecture, ORF Issue Brief No. 349, March 2020

[2] Ibid.

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