Whether India needs a COVID-19 Law?
Updated: May 20, 2020
As we are moving in the eighth week of the Nationwide lockdown which has been colloquially termed as Lockdown 3.0, small and large scale businesses are suffering monumentally, migrants have been rendered hapless and finding their way back home,
unparalleled economy fallout has been experienced by the entire nation, uprise of infection and fatalities have been on a record- breaking streak. The need to have a proper legal framework and a grievance redressal structure has become cardinal.
Taking into consideration the unorganised small scale industries and businesses, they are surviving a state of turmoil where the welfare state does not possess a comprehensive plan of action to succor their plight. It is necessary to acknowledge the lack of legal recourse available to those who are suffering. There lacks a check and balance when it comes to different organs of the state dealing with a worldwide pandemic.
So far, a plethora of orders and guidelines have been promulgated by various authorities of the Central and state government which necessitates a peremptory assessment of the rationale behind these legislations which are often criticised by the experts from all fields as well as the opposition.
The nationwide lockdown was imposed on 24th March 2020 by an order of the National Disaster Management Authority (hereinafter referred as ‘NDMA’) intra-vires the Disaster Management Act, 2005 (Section 6 clause 2, sub-clause (i)). Subsequently, additional guidelines were issued by the Ministry of Home Affairs as per Section 10 clause 2 sub-clause (1) of the same Act.
The Disaster Management Act 2005 (hereinafter referred as ‘DM Act’), is a special statute promulgated with an intent of effective management of a disaster, under which the NDMA is the nodal agency with Prime Minister of India as its chairman. On March 4, 2020 the Covid-19 outbreak was notified as a disaster by the NDMA as per Section 2 sub-clause (d) of the DM Act. After four days of confirming the first COVID-19 case of India, Kerala Government declared it a calamity on February 4th, 2020, similar notifications were issued by other states subsequently. Since then several State Governments have been issuing guidelines in consonance with their obligation under the DM Act.
Not only the DM Act is enforced by the State governments but also a 113 year old vintage law, the Epidemic Diseases Act, 1897 (hereafter referred as ‘ED Act’) is enforced which empowers the state government to take necessary action in the times of a pandemic. For example, state governments such as Kerala, Delhi, Tamil Nadu, Maharashtra and Rajasthan initially issued measures concerning public health and safety, such as mandating social distancing to all & isolation to foreigners. They later on declared a mandatory isolation for those who had a travel history and those who came in contact with suspected cases. They recently mandated home quarantine for those who even travelled inter-state irrespective of whether being asymptomatic or symptomatic of COVID-19.
The effective enforcement of the above guidelines and measures by various state governments in order to promote public health and safety, necessitated the imposition of Section 144 of the Criminal Procedure Code, 1973 in almost every part of the country, irrespective of any positive COVID-19 case in a particular region. The provision gives power to the competent executive magistrate to restrict the movement of certain individuals or groups of individuals residing in a particular area.
A critical analysis of the existing legal framework
Time to time several orders and measures have been passed by the state in line with the various laws and guidelines forming an umbrella of legislation concerning the COVID-19 disaster.
Going by the preamble of the DM Act, it is hard to suffice that it was enacted to tackle a modern age pandemic like COVID-19, where the states are invoking Section 54 of the DM Act to deal with the issue of fake news. On the other hand, the ED Act, being a 19th century law, fails to direct various state governments in taking innovative measures to mitigate a 21st century pandemic.
Moreover, the ED Act also entails an archaic provision, Section 4, which bars a legal proceeding against a public servant for the legal as well as illegal acts done in good faith. Thus, providing impunity to the police officials from getting prosecuted for using excessive force like beating mercilessly the alleged violators of the orders, in the garb of protecting its citizens from a merciless disease.
Moreover, as per the Report of the Task Force to Review Disaster Management Act, 2005 (2013), it was observed that the existing arrangements by the various authorities established under the Act are ineffective and insufficient in carrying out the mandates of the DM Act.
Lastly, the wide ambit of Section 188 of the Indian Penal Code, 1860 penalizes those who defy the orders of a public servant, pertains to be too ambiguous in nature inviting arbitrary and unfettered use of power/force by those responsible for maintaining law and order situation. The instances of excessive use of power by the police officials has been evident from various videos being spread on every social media platform, although the states are timely penalising the perpetrators. Furthermore, the fine of Rs. 200 to Rs. 1000 seems to have a deterrent effect on only the have-nots, while a privileged class finds it very less deterrent.
Why is there a need of COVID-19 Law?
In order to effectively implement norms of social distancing, protection measures for healthcare professionals and paramedics, economic recovery, well-being of the haves and the have nots, facilities to prison inmates, fixing working hours and facilities for public servants, there is an exigency of promulgation of a comprehensive piece of legislation.
A lack of coordination between center-state, and interstate functioning is also a matter of concern which is evident from what seems to be an eternal movement of migrants in different parts of the nation which finds its roots from various state governments claiming their unpreparedness and insufficient funds to ensure the quarantine measures, food security and travel allowances of the starved jobless leaving them with no option but to travel thousands of kilometres barefoot. There is a lack of a proactive policy framework, the consequences of which are borne by mostly by the marginalised.
Laws of other countries
An alternative to such impromptu legislations by the central and various state governments could be borrowed from our neighbouring countries such as the United Kingdom and Singapore. The Coronavirus Act, 2020 of the U.K., addresses the issues of mandating registrations for social gatherings, mandating registrations of healthcare professionals and paramedics, closing guidelines for educational institutions, facilities for criminal proceedings unlike the hearing of only exceptional cases in India and comprehensive plan of action for financial assistance to those in need. On the other hand the Singaporean Government’s Infectious Diseases (Workplace Measures to Prevent Spread of COVID-19) Regulations 2020 mandates the government to provide accommodation to ‘at risk individuals’, issuance of guidelines for carrying out business and work from home, and addressing the shutdown/reopening of educational institutions etc. In addition to that, the violators of the Singaporean Penal law results in the imposition of a fine of not less than S$ 10,000(S.G.D.) which is very high from what is imposed in India, having comparatively a much more deterrent effect.
The Central Government could take steps in consonance with the recommendation of the National Disaster Management Guidelines, 2008 which mandated to form a comprehensive law to deal with Public health as the ED Act does not give sufficient powers to the central government with public health and sanitation being a state subject (Entry 6 of List II, Constitution of India) restricting Center's power to curb an international health emergency. Enacting a comprehensive law concerning COVID-19 would help in mitigating the economic loss and ensuring the public health.
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The Disaster Management Act, 2005.
The Epidemic Diseases Act, 1897.
The Code of Criminal Procedure Code, 1973.
The Indian Penal Code, 1860.