About the Author: The author is a 2020 graduate of National Law University, Delhi. In 2021 she completed her LL.M. from National Law School of India University, Bengaluru. She is currently working as a researcher in areas related to health policy.
Editor’s Note: This post is part of the Reflection Series showcasing exceptional student essays from CCG-NLUD’s Seminar Course on Technology & National Security Law. Along with a companion piece by Kumar Ritwik, the two essays bring to a life a fascinating debate by offering competing responses to the following question:
Do you think the ongoing COVID-19 Pandemic could have been better managed (more efficiently or more democratically) if the government had invoked emergency provisions under the constitution instead of relying on the national disaster management act? Why or why not?
Both pieces were developed in the spring semester, 2020 and do not reflect an updated knowledge of subsequent factual developments vis-a-vis COVID-19 or the ensuing pandemic.
- Introduction
Since the introduction of the Constitution of India, the COVID-19 pandemic represents an unprecedented event. It has created extraordinary infrastructural challenges to both governing authorities and legal institutions. In the initial phases of this pandemic the Government of India faced the difficult task of not only adopting containment measures which minimise the effects and casualties of the virus; but also ensure the delivery of essential services to its citizens. It has had to execute these tasks whilst preserving citizens’ liberties and the basic values of the Constitution. Given the death toll along with, economic, financial, political, educational and broader health related costs exacted by the pandemic it is critical for the government to deploy best-in-class infrastructural solutions which remain consistent with India’s constitutional values.
In this article, I argue that after evaluating the competing options, the Government of India’s decision to rely on the Disaster Management Act (“DM Act”), 2005 rather than invoking the Constitution of India’s emergency provisions was the appropriate course of action. The DM Act defines the term ‘disaster’ as a situation of “… catastrophe, mishap, calamity or grave occurrence which has arisen because of man- made or natural causes and has resulted in “substantial loss of life or human suffering”. Further, it has to be “… of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area”. The gravity of human suffering caused by the COVID-19 pandemic, both in terms of aggregate infections and deaths, becomes more and more evident with the passage of time.
- Limitations of Constitutional Emergency Provisions
An emergency can be proclaimed pursuant to Article 352(1) of the Indian Constitution. According to it, if the President is satisfied that the grave emergency exists to the security of India or any part thereof is threatened by “war/ external aggression or armed rebellion”. The term “armed rebellion” replaced the former term “internal disturbance” after the emergency proclamation in 1975. When an emergency is proclaimed, Article 353, permits (1) the Central government to direct any state on how to use its executive power (2) permits parliament to make laws even in matters which are in the state list. Article 358 suspends the six fundamental rights protected under Article 19 during Constitutional emergencies. Article 359 suspends enforcement of fundamental rights during emergencies.
In the context of COVID-19, any decision by the Government to declare a national emergency under Article 352 of the Constitution, would be unconstitutional in light of the 44th Constitutional Amendment in 1978. The 44th Amendment holds that such emergencies can only be declared if the security of India or any part thereof is threatened by war or external aggression or armed rebellion (Emphasis Added). These are the only three grounds under which an emergency can be declared under Article 352.
The Constitution of India does not have any explicit provisions for disaster management. In absence of any such provision, disaster management was conventionally considered to be within the competence of the states as per colonial practice. The legal basis of the Disaster Management Act can be traced in Entry 23, Concurrent List of the Constitution which relates to “Social security and social insurance” as well as Entry 29, Concurrent List which relates to “Prevention of the extension from one State to another of infectious or contagious diseases or pests affecting men, animals or plants,”. Owing to the federal structure of India’s Democracy, public health and public order are listed in the State List under the Seventh Schedule of the Constitution. Critically, while operationalising and implementing Government interventions to contain the spread of COVID-19, the Government’s use of provisions under the DM Act must be mindful of the unprecedented and unique factors of this disaster where the primary causality is human life and not degradation of environment or loss of property.
The framework of the DM Act is consistent with the federal structure of India’s democracy. Conversely, the proclamation of Emergency under the Constitution centralises powers within the Union Government. When in effect, the Union Government can direct state governments and make laws on the entries present under the State list in the Constitution of India. Under Article 357 of the Indian Constitution, the power of state can be vested in the legislature, which can delegate it to the President and the President can further delegate it to an appropriate authority. In his way the powers vested in the Central Government under the provisions of emergency are very flexible. However, this compromises the quasi federal structure of India’s constitutional democracy.
In India’s Constituent Assembly Debates, the Emergency provisions were being conceived as an exception to otherwise federal structure of the Government., Originally this power to declare emergency/President’s Rule in a particular State was envisioned to be vested with the Governors of the State. At the time, the position of Governor was supposed to be an elected office. Ultimately this was not the case as the office came to be appointed by the President. In effect this means that the power to declare an emergency under the Constitution is essentially vested in the President. Under Constitutional emergency conditions as per Article 256, even the legislative powers can be vested in the president and need not be vested in Parliament. The President can make incidental and consequential provisions necessary to give effect to proclamation.
- Conclusion: The Merits of the Disaster Management Act
India is a diverse country, not just in terms of culture and heritage but also in terms of geography. The States, with international airports and tourism specific industries, are more prone to the spread of the virus and the number of cases varies across states. In the context of COVID-19, State-specific measures become important since local authorities may have to simultaneously manage other natural and man-made disasters. Recent examples of this include the cyclone Amphan in Kolkata, or the gas leakage from the chemical plants in Visakhapatnam. States which are prone to natural calamities such as cyclones, floods, famines could be afforded the flexibility to create State and district plans under DM Act, to tackle such calamities as well as the spread of the COVID-19 in more vulnerable locations. Further, policymakers should not ignore the heterogeneity of infrastructure across the health industry as well as the strength of the economy– the dependency of which also varies from state to state.
The demand for Personal Protective Equipment (PPEs) for essential workers or essential infrastructure like ventilators also varies across states based on variables such as the number of cases. These factors dictate the need for state-specific measures and targeted district-specific measures as well. The intensity of the spread of the virus is being determined district wise by distinguishing them as red, orange and green zones, and the laying out of district plan per Section 31 becomes of utmost importance for the Red Zone districts.
The Centre should limit its role to coordination between states and the other departments of the government, rather than dictating consistency across the states. Instead, states should be empowered in terms of implementation, enforcement and the funds. The cooperative federalism envisaged in India’s Constitution will be a better model for the government to follow. This principle could have been utilised at the time of crisis of inter-state migration of workers and could further have been utilised for facilitating transportation of essential goods, in order to minimise economic harms and societal destabilisation during periods of government mandated lockdowns.
I conclude by reiterating that it is better for the Government to manage the pandemic under the Disaster Management Act, 2005. However, in case a State Government is going through the breakdown of its constitutional or infrastructural machinery and in which case it is unable or unwilling to exercise its responsibility to provide relief to affected persons, then the Central Government should impose the Constitutional Emergency provisions in such territories.
*Views expressed in the blog are personal and should not be attributed to the institution.
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