COVID‐19 health emergency: Union response and federal concerns
For the first time since independence, India is facing a major health emergency in the form of the COVID‐19 pandemic. The decision to impose a nationwide lockdown by the Central Government using the powers under Section 6(2)(i) of the DMA has raised certain questions by legal experts. The notification issued by the Secretary, Ministry of Home to all the state governments on March 24, 2020, asked all state and UT governments to send daily reports on how they are implementing the lockdown. Since then, the MoHFW has been issuing guidelines on various precautionary measures to be taken by all state/UT governments. However, there is opposition to the constitutional and legal validity of issuing lockdown orders under the DMA. The opposition to the implementation of the lockdown by the Central Government is based on two grounds. First, the imposition of the lockdown of all activities in the states and directed the district magistrates, who otherwise take orders from state governments, to implement the lockdown during the COVID‐19 outbreak is against the spirit of the Constitution as both public order, and health and sanitation come under the State List.
The Central Government has formed the Inter‐Ministerial Central Teams (IMCT) under Section 10(2) of the DMA to conduct field visits in all states and UTs instead of forming an Inter‐State Council under Article 263 of the Indian Constitution. Secondly, there is a lack of fiscal and monetary help from the Central Government to the state/UT governments during this lockdown period. During this pandemic, the Central Government has taken the decision to control COVID‐19 and is largely dependent on existing legal tools like the EDA and the DMA. Safety and protection of lives is the prime goal of imposing a lockdown, and it was the only option for the country in attempting to control the virus as there is currently no vaccination. Narendra Modi, has been organizing video conferences with the chief ministers of respective state/UT governments along with other functionaries in the governments and taking their concerns and suggestions.
The decision to impose and then extend the lockdown three times was taken by the Central Government after consultation with the chief ministers. Regarding the fiscal and monetary help to federal units, the Central Government has initiated fiscal stimulus plans such as the Pradhan Mantri Garib Kalyan Yojana. Though the stimulus package is less than 1% of the GDP, there is space to do much more in the post‐lockdown period. The Central Government has to concentrate on strengthening the constitutional and legal provisions to face a future health emergency, keeping the basic structure of the Constitution intact.
There is a pertinent need to strengthen local authorities to deal with and address a pandemic situation with respect to testing, contact tracing, isolation wards, availability of personal protective equipment (PPE), and availability of data at the village level. There is a need for further financial transfers to local bodies more than ever in this situation. Finally, there is a lack of grievance redressal mechanisms in this act. It is vital that the citizens of this nation, when facing such unprecedented and challenging times, are provided with a framework to address their grievances at different levels.
Powers of Central Government
When the Central Government 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 or the spread thereof, the Central Government may take measures and prescribe regulations for the inspection of any ship or vessel leaving or arriving at any port in 2 [the territories to which this Act extends] and for such detention thereof, or of any person intending to sail therein, or arriving thereby, as may be necessary.]
(3)Penalty.—Any person disobeying any regulation or order made under this Act shall be deemed to have committed an offense punishable under section 188 of the Indian Penal Code (45 of 1860).
(4)Protection to persons acting under Act.—No suit or other legal proceedings shall lie against any person for anything done or in good faith intended to be done under this Act
- E) Section 188 of Indian Penal Code – “Section 188 of the Indian Penal Code prescribes punishment for disobeying an order duly promulgated by a public servant.” The above-mentioned law is for those defaulters who disobey the orders of the public servants and roan around aimlessly during the lockdown.
- F) Section 144 of the Criminal Procedure Code “Section 144 of Criminal Procedure Code (CrPC) imposes power to the executive magistrate to restrict a particular or a group of persons residing in a particular area while visiting a certain place or area.” The most important preventive measure against corona is safeguarded by this section that restricts to a gathering of people and thus in a way supports social distancing.
- G) Section 3 of the Essential Commodities Act, 1955 During this time of global crisis, the citizens need to know what counts as essential commodities and what items are to be avoided.
- H) Schedule 1 of the Essential services act provides a list of services in the category of essential that would we provided during the period of lockdown. The central government has allowed the flow of essential services during the lockdown thus it becomes extremely necessary for us to know what services are covered as essential in the act.
- I) Disaster Management Act, 2005 & National Disaster Management Guidelines, 2008 deals with the management of biological disasters.
While there is a list of laws related to COVID-19, we as responsible citizens need to realize that these laws are made for our betterment only and if we realize the seriousness of the ongoing crisis there would be no need to implement strict laws against the defaulters. The defaulters here are not just risking their lives but the lives of the nation as a whole. Time and again we are told to stay quarantined yet the police have to work on double shifts to penalize the defaulters. It is high time we take COVID-19 as a very serious issue and cooperate with the government to help not make India the second Italy.
Need to amend / repeal the Colonial-era Laws
Three suggestions emerge from this analysis to strengthen India’s constitutional and legal mechanisms for facing COVID‐19 and similar future scenarios after our review of various acts and constitutional provisions. Firstly, there is a serious need to review the colonial era EDA. Secondly, the passing of comprehensive public health law covering various aspects of health, which provides the right to health to all citizens is needed. Lastly, there is a need to explore various options to include health emergency provisions in the Indian Constitution.
1.Amendments to Epidemic Diseases Act, 1897
The EDA is deficient on the following grounds.
- The act fails to define and categorize various kinds of diseases and the level of severity.
- The act does not address the containment process and demarcation of zones based on severity levels; it simply prescribes the state’s role to restrict the movement of the individual.
- The act does not mention the role of Panchayats and other local governments.
- The act fails to mention the regulations of drugs and vaccines during an epidemic.
- The act emphasizes controlling the spread of disease by ship, but there is no mention of air travel. Given modern realities, in which air travel far exceeds travel by ship, there is an urgent need for the provision of stricter screening measures needing to be taken at the airport and by airlines.
To strengthen the act, the following amendments are required:
- The amendments related to identifying, testing, isolating, contact tracing, controlling, coordinating, and containing any epidemic are needed to make the EDA comprehensive to tackle any future health emergency.
- Changes related to the insertion of the definition and categorization of various diseases and demarcation of areas based on severity levels are needed.
- There is a serious need to clearly state the role of the Union for enhanced coordination with various state and local governments.
- The establishment of quarantine facilities inside or near airports should be explored and included in the act.
- Identification of the quarantine locations, which are geographically and scientifically advantageous to contain the pandemic, should be explored. These should be located in remote locations where there are naturally fewer inflows and outflows of people.
2. Need for comprehensive national public health law
The second suggestion is for the promulgation of a comprehensive national public health law. Though there have been attempts to establish a public health law—the Model Health Bill in 1955, updated in 1987, the National Health Bill in 2009, and the Public Health (Prevention, Control, and Management of epidemics, bio‐terrorism, and disasters) Bill 2017, these were not passed. In each of these cases, there was opposition from states, as health comes under state oversight. As discussed, States like Tamil Nadu and Madhya Pradesh have their own public health laws. There is a need to review various laws at the sub‐national level and also in different countries to strengthen India’s public health law. In Canada, the Public Health Agency of Canada Act in 2006 provides public health measures and emergency preparedness and response. At the federal level, the Public Health Agency of Canada (PHAC) is primarily responsible for “the promotion of health, prevention and control of chronic diseases, prevention and control of infectious diseases, and preparation and response to public health emergencies” . The Public Emergency Act and the Quarantine Act also empower federal units in Canada. In Australia, the National Health Security Act, 2007, establishes “structures and processes for preventing and responding to national health emergencies” in the country (Buchanan, 2015). England passed the Public Health (Control of Disease) Act of 1984, which protects the health of the public through a system of surveillance and action (Griffith, 2020). Closer to India, Singapore passed the Infectious Diseases Act (IDA) in 1976 and strengthened it during the global SARS epidemic in 2003 (Neo & Darius, 2020). Recently, Singapore also responded quickly and passed a temporary law—the COVID‐19 (Temporary Measures) Act 2020 (CTMA). Recently, the United States of America (USA) passed the Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020, to fund research and development of vaccines, as well as therapeutics and diagnostics. A comprehensive national public health law must take into consideration practicable provisions in various countries’ legislative responses to a health emergency and try to strengthen India’s public health law while keeping social, political, economic, cultural, and environmental factors in mind. The role of the Union is crucial in creating an environment for a comprehensive public health law by reviewing and addressing the concerns of the states.
The comprehensive public health law should include the following provisions to ensure health care to citizens:
- The role of the Union, state, and local governments—panchayats and municipalities should be clearly defined without creating any conflicts.
- The Right to Health should be explicitly mentioned in the Indian Constitution through this act and include provisions for strengthening the medical infrastructure.
- An institutional mechanism that is able to establish a network with governments, research institutions, and health care providers should be included.
- The act should clearly state various processes and mechanisms for tracing testing and treatment for controlling the epidemics through appropriate and timely interventions at national, state, and local levels.
- Fiscal and monetary relief for states and local bodies during medical emergencies should be included.
- Special protection should be given to health care and sanitation workers keeping in mind the social dynamics of society.
3.Heath emergency provisions in the Indian Constitution
As discussed, there are no health emergency provisions in the Indian Constitution. Recently, after the declaration of the pandemic, France enacted the Emergency Response to the COVID‐19 Epidemic Act (2020), in a speedy procedure on March 23, 2020, to contain and control the epidemic. According to the new Act. L3131‐12 CSP, of the French Constitution, states, “the State of health emergency can be declared (…) in the event of a health disaster endangering, by its nature and gravity, the health of the population” . Japan also invoked a health emergency provision on April 7, 2020 by revising the New Influenza Special Measures Act. Article 352 of the Indian Constitution empowers the President to impose an emergency “whereby the security of India or any part thereof is threatened whether by war or external aggression or armed rebellion.” However, a health emergency is not grounds for imposing a national emergency and restricting the movement of people. India should explore various options for inserting a health emergency provision into the Indian Constitution. There is a need to discuss widely inside and outside of the Parliament as emergency provisions impact the fundamental rights of citizens. There is opposition from pockets of society that lockdown is unconstitutional and there has been criticism of the excessive role of the Central Government in imposing the lockdown . On the other hand, there are Public Interest Petitions (PILs) filed in the Supreme Court to impose a financial emergency under Article 360 of the Indian Constitution. Clarity on the lockdown which restricts the movement of people will impact the fundamental rights enshrined under Article 19 (1)(d) to free movement throughout the territory of India and 19 (1)(e) to reside and settle in any part of the territory of India. Additional opposition to the lockdown order comes from the excessive role of the Central Government in imposing lockdown by declaring the health emergency as a subject of federal units. As COVID‐19 is highly contagious, virulent, and has no boundaries, the coordinated efforts of the union, state, and local governments are crucial in handling this pandemic. With a diverse population and opinions, imposing lockdown will certainly have implications on controlling the pandemic. What one should realize is the right to life, and personal liberty is more important than the freedom of expression during a pandemic situation.
The COVID‐19 pandemic has led to questions about many aspects in India—the quality of healthcare, the response of governments and institutions, and issues related to law and order. The constitutional and legislative framework should help in addressing these questions. The Indian Government effectively imposed the lockdown and reduced the number of cases, while at the same time certain lawmakers and legal experts questioned the constitutional legality of the lockdown and the response of the Government. Though the Central Government has implemented the EDA and the DMA, these are not sufficient to face the health emergency effectively given the dynamic nature of the disease. This paper has explored various options for bridging the gap and strengthening the constitutional and legal framework for addressing any future health emergency. These emergencies will give ample space to fill the lacuna in the legal framework, and allow our future generations to be better prepared for any type of health emergency.
Author: Vinay Sachdev