About the Author: The author is a 2020 graduate of National Law University, Delhi. He is a Delhi-based advocate practicing at the Supreme Court of India.
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 Bharti Singh, 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.
After the onset of the Covid-19 pandemic, India’s Ministry of Home Affairs (“MHA”) vide Order No. 1-29/2020-pp dated 24th March 2020, under section 6(2)(i) of the Disaster Management Act (“DM Act”), 2005, announced a nationwide lockdown and restrictions among other things. The order included an imposition of restrictions on movement and other liberties of Indian citizens. Wide ranging restrictions articulated in that order and subsequent orders under the DM Act directly impacted, among other things, individuals’ right to movement [Art. 19(1)(d)] and their right to livelihood (Art. 21). Though well-intentioned, these measures left much to be desired in terms of government support. Several significant administrative issues and concerns were raised. In this article, I argue that the Indian Government could have managed the pandemic better if it had invoked emergency provisions under Part XVIII of the Constitution instead of relying primarily on the DM Act, 2005 .
- LIMITATION OF THE DISASTER MANAGEMENT ACT IN COUNTERING COVID-19
To be fair, the government’s interventions have relied on the trinity of the DM Act; the Epidemic Diseases Act, 1897; and relevant state-level Public Safety Act(s). However, such interventions have resulted in some pretty significant concerns. Specifically, administrative officials, located far away in the national capital i.e. New Delhi, are invoking powers and issuing decrees under these statutes. They are granted the power to control and restrict the movement of a billion lives in the country. In essence we are observing that the decision(s) of officials who are far removed from ground-level realities are impacting the lives of individuals residing in remote cities, towns and/or villages.
I argue that since health is a state subjectState governments should have been ordinarily tasked with both the primary responsibility as well as power to decide how to best deal with the pandemic. However, given the extraordinary scale of the pandemic, a different route was chosen wherein the Union Government could exert tight control and issue numerous advisories and directives over an extended period. This was consistent with the idea that a streamlined uniform approach towards tackling the pandemic would work best across all states. As was observed later, States struggled to manage the crisis due to institutional and budgetary constraints. It was quite transparent how dependent States are on the Union Government for financial aid as well as technical expertise. As stated earlier, ground level realities are most closely dealt with by the district bureaucracy, and therefore involving them in the crisis management planning apart from implementation measures would have been beneficial. Emergency provisions under India’s Constitution could have served as an effective alternative which allowed the country to manage the crisis in a different and perhaps, more effective manner.
In the initial period of the pandemic, parliamentary operations suffered major disruptions. A direct result of these disruptions was a lack of meaningful legislative discussion and accountability. Our constitution envisages a system of checks & balances between the powers of the legislature, executive and judiciary. Disruptions to the operation of Parliament signalled that, over a period of several months, direct executive action could face little oversight or accountability from the legislative branches of government at both the Central and State levels.
In such a situation, it is reasonable to turn to the judiciary for ensuring adequate accountability of executive actions. Unfortunately, the judiciary has failed on most occasions with its lax attitude towards the apathy of the officials. While the courts have occasionally rebuked the governments on specific points such as its handling of the migrants’ crisis, there has been no concerted effort by the Indian judiciary in holding the executive or its officials accountable for its management of the crisis. This is in addition to the fact that an extended period of the lockdown ensured that only those few fortunate enough to have constant access to high-speed internet could approach the judiciary for remedies/to submit its petitions as well.
The DM Act, strictly speaking, was not enacted to issue directives on public health emergencies or pandemics. In fact, the Epidemic Diseases Act, 1897 has been enacted with the intent of controlling infectious disease outbreaks like Covid-19 . Though creative and inclusive interpretation would allow for a pandemic to be covered under the scope of the DM Act, the structure and mechanism within the statute has been rendered useless or ineffective to deal with a crisis of such magnitude. These circulars and the regulations that they invoke continue to remain disproportionate and outside the scope or stipulated purpose of the particular statute.
However, the DM Act has brought with itself immense powers that are enshrined with the government. Any regulation or decision may be taken by the government that is deemed fit and necessary in its own opinion, to aid in the efforts of reducing risks of a disaster (or a pandemic in this case). Additionally, Section 8(1) of the DM Act empowers the Central Government to constitute a National Executive Committee (‘NEC’), comprising senior bureaucrats and leaders [S. 8 (2)].
The NEC is empowered to issue directions so as to fulfill obligations and objectives under the Act. State governments and district bureaucracy are bound by circulars or regulations which are issued by the NEC. In fact, the NEC can empower another authority or other authorities to issue guidelines that would bind State Governments as well. Such an overarching framework under Article 256 of the Constitution has essentially been put in place to ensure that where the Union Government finds itself in certain extraordinary situations, it has the necessary tools to adopt measures across all States in a uniform manner. In this case, the Union Government empowered the Union Home Ministry to issue all necessary guidelines for State authorities.
- EMERGENCY PROVISIONS AS BETTER AVENUES AGAINST HEALTH EMERGENCIES
In contrast, Articles 355 and 356 read alongside Articles 246 and 256 would grant wide powers to the Government of India to impose emergency and invoke these provisions to grant itself all the necessary powers to deal with the crisis. Interestingly, emergency provisions still do stipulate a time limit period whereas the DM act does not. The DM Act grants an unlimited time period to the government machinery to apply these regulations and deems it applicable to all places deemed worthy of its application.
After the bitter experience of the emergency period of 1975-1977, drastic changes were made in order to make the extension of an emergency period contingent on legislative accountability as well. However, with the DM Act, regulations do not require any legislative sanction or even a discussion to that effect either. Therefore, the broad powers enshrined under the DM Act appear to contradict Constitutional ideals, though there has been little critique of the same in the public discourse.
This silence is perhaps owed to the fact that almost every citizen wishes to see the Government mount an aggressive and effective response to such a pandemic, without creating significant hurdles in their path to do so. However, in doing so, these wide-ranging regulations have also brought forth a huge chilling effect and have the potential to incentivise abuse of power by officials in such situations as well.
With the large-scale powers that the DM Act accords to officials, India’s treatment of the pandemic essentially resembles an emergency situation. Extraordinary powers are held by the State machinery with little or no safeguards/mechanisms in place that ensure periodic review and/or legislative accountability. Therefore, the current framework serves as a de facto emergency framework.
This is a departure from most mature democracies. Countries have taken the aid of new legislations aimed at the public health emergency, with numerous parliamentary democracies ensuring that regulatory interventions continue to have some kind of legislative scrutiny. The UK legislated close to a hundred laws (collectively referred to as the ‘lockdown laws’ in the UK) to deal with the pandemic, whereas New Zealand pushed for a single comprehensive law instead.
Instead of acting without any restrictions under a statute that was not originally meant for handling a pandemic that has stretched over many years, the Indian Government could have followed this example and relied upon the extant emergency powers within the constitutional framework or legislated a new public health law which could empower officials with the safeguards necessary in a democratic setup instead.
*Views expressed in the blog are personal and should not be attributed to the institution.