On 24th March 2020, Prime Minister Narendra Modi had announced a nation-wide lockdown, from 25th March 2020 to 14th April 2020. The nationwide lockdown aims to combat the COVID-19 outbreak that is infecting thousands of people across the country and is intended to enable the concept of “social distancing” to contain the spread of the virus.
Does the 21-day lockdown have legal backing?
- India invoked two laws to control and mitigate the coronavirus outbreak. They are as follows:
- Disaster Management Act, 2005
- Epidemic Diseases Act, 1897
- Most States invoked Epidemic Diseases Act, 1897 to implement measures such as quarantines, mandatory screening, implement measures to ensure social distancing etc.
What is a lockdown?
- Lockdown is an emergency protocol that aims to prevent people from leaving a given area.
- A full lockdown means that the people should stay where they are and not exit or enter the given area.
- Though it allows for essential supplies, it calls for shutting down of non-essential activities for the entire period.
- The restrictions during this 21-day lockdown are enforced by state governments based on the advisories from the Centre and these restrictions drive their legal basis from Epidemic Diseases Act, 1897.
What is the Disaster Management Act, 2005?
- The Ministry of Home Affairs had passed an order to invoke the Disaster Management Act, 2005.
- The objective of this law is to manage disasters, including preparation of mitigation strategies, capacity-building and more.
- Under Section 2(d) of this Act, “disaster” means a 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.
- To address the current epidemic, the Centre has included COVID-19 outbreak as “Notified Disaster” as a “critical medical condition or pandemic situation”.
Who has the power to implement the 21-day lockdown?
- Article 245 of the Indian constitution gives power to the Centre to make laws for whole or any part of India. It also empowers states to make laws for the whole or any part of the state. This Article also lays the basis for the division of powers between the centre and the state.
- Article 246 provides for the “Distribution of Legislative Subjects” between the Centre and states. It also creates three lists based on the 7th Schedule of the Constitution, which include:
- Union List
- State List
- Concurrent List
- Union List deals with matters on which the Parliament has an exclusive power to make laws that apply to the whole or part of the country.
- The State List deals with issues on which the state government has an exclusive power to legislate.
- The Concurrent list provides subjects on which both the Centre and the state governments make laws.
- Constitutionally, the state government is empowered to matters related to public order and public health (Entry 1 and 6 of the state list)
- However, Entry 29 of the concurrent list empowers Centre and states to legislate on matters related to the prevention of infectious or contagious diseases spreading from one state to another.
- This entry does not limit the powers of the legislating authority to simply ensure public order or health. It also allows for any relevant legislation to be passed, as long as it can prevent the spreading of disease across states.
- As both Central and state governments are given the power to legislate entry in Concurrent List, a possible collision or inconsistency between two legislations is possible.
- To address this concern, Article 254 states that the law passed by the Parliament shall prevail and state legislature shall remain void in case of repugnancy.
- Thus, the constitution acknowledges parliamentary law’s supremacy over state legislation in the concurrent list.
- Any legislation under Entry 29 of the Concurrent List must deal with the prevention of highly infectious diseases that can extend beyond a state’s border.
- The current COVID-19 epidemic is highly contagious, making it necessary to implement laws in a unified manner by the Centre as opposed to state governments implementing measures not coherent with one another.
- The Disaster Management Act, 2005 does the same.
- While Disaster Management Act does not specifically deal with the control of a pandemic, the powers of the National Disaster Management Authority under Section 6 of this Act can be broadly interpreted to give a unified command to the Centre to effectively manage disaster throughout India.
- Furthermore, section 38 of this Act states that the states must follow the directions of the National Disaster Management Authority chaired by the Prime Minister.
- Moreover, Section 72 of the Disaster Management Act, 2005 provides that the provisions of the Act will have an overriding effect on all other laws.
- Thus, the order passed by the Home Ministry will override all state orders and municipal orders to the extent that they are consistent with the Home Ministry’s order.
Should the government have declared a national emergency?
- National Emergency comes under Article 352 of the Indian Constitution.
- The option to declare National Emergency is not available for the government as it is not legally permissible after the amendment of this Article in 1978 (44th Amendment).
- As per the 44th Amendment of Article 352, an emergency can be declared only if the security of India or any part thereof is threatened by war or external aggression or armed rebellion.
- These are the only conditions under which emergency can be declared under Article 352.
- Thus, the only option the Centre had was to rely on Entry 29 of the Concurrent List and invoke its power under the Disaster Management Act, which it did.
What are the provisions of the Disaster Management Act, 2005?
National Disaster Management Authority (NDMA):
- The Disaster Management Act, 2005 provides a legal framework for the establishment of NDMA, with the Prime Minister as chairperson.
- The NDMA should have no more than 9 members, including a Vice-Chairperson.
- The tenure of the members of the NDMA shall be 5 years.
- The NDMA is responsible for laying down policies, plans and guidelines for disaster management and to ensure a timely and effective response to a disaster.
- Under section 6 of the Act, it is responsible for laying down guidelines to be followed by states in drawing up the state plans.
National Executive Committee (NEC):
- Section 8 of the Act empowers the Centre to set up the National Executive Committee (NEC) to aid the NDMA.
- It is also responsible for preparation of the National Disaster Management Plan for the whole of the country and to ensure that it is reviewed and updated annually.
- Under Section 10 (2)(1) of the Act allows the NEC to give directions to the governments regarding measures that are to be taken by them.
- NEC consists of Secretary level officers of the Government of India in the Ministries of home, agriculture, atomic energy, defence, drinking water supply, environment and forests, finance (expenditure), health, power, rural development, science and technology, space, telecommunication, urban development and water resources.
- Home Secretary serves as the ex officio chairperson.
- Recently, the Union Home Secretary, who is the Chairperson of the National Executive Committee, delegated power to Union Health Secretary to deal with the COVID-19 epidemic within the country.
State Disaster Management Authority (SDMA):
- Under Section 14 of the Act, all state governments must constitute a State Disaster Management Authority (SDMA).
- The SDMA consists of Chief Minister of the State, who is the Chairperson and no more than 8 members appointed by the Chief Minister.
- State Executive Committee is responsible for drawing up the state disaster management plan, and to implement the National Plan.
- SDMA is mandated under section 28 of the Act to ensure that all the state departments prepare disaster management plans as prescribed by the national and state authorities.
District Disaster Management Authority (DDMA):
- The Chairperson of DDMA will be the Collector or District Magistrate or Deputy Commissioner of the District.
- The elected representative of the area is the ex officio co-chairman.
National Disaster Response Force:
- Section 44 and 45 provide for constituting of a National Disaster Response Force under the command of a Director-General appointed by the Centre.
- It is involved in rescue operations and other related aspects.
National Institute of Disaster Management:
- Section 42 of the Act calls for the establishment of National Institute of Disaster Management.
- It is a premier institute for training and capacity development programs for managing disasters in India, on national as well as regional basis.
Access to disaster funds:
- The Act allows the government to have access to the National Disaster Response Fund, the State Disaster Response Fund and the District Disaster Response Fund.
- Under Section 46 of the Act, National Disaster Response (NDRF) is a fund managed by the Centre to meet the expenses for emergency response, relief and rehabilitation due to any threatening disaster situation or disaster.
- It supplements the funds for State Disaster Response Fund (SDRF) of the states to facilitate immediate relief in case of calamities of a severe nature.
- According to Sections 51 to 60 of the Disaster Management Act, 2005, there will be penalties for specific offences.
- If anyone obstructs any officer or employee from performing duty, he/she will be imprisoned for a term, which may extend to one year or fined or both.
- If such obstruction or refusal to comply with directions result in loss of lives or imminent danger thereof, the person shall be punished with imprisoned for a term, which may extend up to two years.
- These sections can also be invoked to punish those making false claims, indulging in misappropriation of money or materials. The penalty in this regard may include imprisonment, which may extend to two years and also with fine.
- For issuing false warnings, there could be imprisonment for a year or fines.
- If any government departments are involved in offences, the head of the department will be deemed guilty and liable to be punished accordingly unless he/she proves that the incident happened without his/her knowledge or that he/she exercised all due diligence to prevent the commission of such offence.
- If it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any officer, other than the head of the department, such officer shall be deemed guilty of that offence and shall be liable to be proceeded against and punished accordingly.
- Failure of an officer in duty or his connivance at the contravention of the provisions of the Act can lead to imprisonment for a term which may extend to one year or with fine under section 65 of the Act.
How effective is the Disaster Management Act, 2005 in dealing with coronavirus epidemic in India?
- The Disaster Management Act, 2005 is used in tandem with the Epidemic Diseases Act.
- While the primary objective of the Disaster Management Act is not to tackle disease outbreak, the Epidemic Disease Act addresses this issue.
- However, the Epidemic Diseases Act is vague pre-colonial era law that lacks considerations to the current scenario.
- Limitations of both these laws are supplemented by each other.
- While using both laws together is innovative, a more comprehensive way to deal with this situation is to ensure the strengthening of Epidemic Diseases Act so that it is on par with the current day situations.
- There have been earlier attempts in the past to replace the law.
- The Central Government conceptualised the Model Public Health Act in 1955 and updated it in 1987. However, it failed to convince the states to adopt it.
- The Draft Public Health Bill, 2017, which looked to control of epidemics, disasters and acts of bioterrorism, also attempts to overhaul the current system.
- The Bill would have replaced the 1897 law, but it has still not been tabled in the Parliament and is under Law Ministry’s consideration.
- However, just replacing one law with another is not going to solve the issue.
- Without an efficient surveillance system, strong public health cadres and epidemiologists to provide technical inputs and guide policies, efforts to manage epidemics may not succeed.
- An integrated and comprehensive provision for the control of disease outbreaks is a need of the hour.
In recent times, there is a stark increase in the number of new infectious diseases due to the combined effects of demographic, environmental, social, technological and other changes in our ways-of-living. This makes it evident that similar outbreaks can be expected in the future. Part of it can be due to climate change and the rest is because of us pushing into the last wild spaces on our planet, making us more likely to come to contact with wildlife populations that may carry these infectious diseases. Taking this future into consideration, comprehensive law based on the current day situations to tackle epidemics is a need of the hour.
Practice question for mains:
What are the laws that were used to enforce 21-day lockdown to combat COVID-19? How can they be strengthened to make them effective in the future? (250 words)