Varnika Verma, Student, Chanakya Law College, Kumaun University.
“QUOD HOMINIBUS OPUS EST NUNC ATTENTAT SOLIDARIETATEM”
CO stands for CORONA
VI stands for VIRUS
D stands for DISEASE.
The Coronavirus disease is a highly transmittable and pathogenic viral infection caused by severe acute respiratory syndrome Coronavirus-2 (SARS-CoV-2).
The outbreak was initiated from the Hunan seafood market in the City of Wuhan, China and was first reported to the WHO Country Office in China on Dec 31, 2019 and further it was declared a Public Health Emergency of International Concern on Jan 30, 2020.
On Feb 11, 2020, WHO announced a name for the new Coronavirus disease: COVID-19. Soon after on 11th day of March, 2020 WHO declared Covid-19 as PANDEMIC.
On 14th March, 2020, the 2nd populated country of the world with 28 States and 08 Union Territories i.e. INDIA declared this dreadful virus as PANDEMIC.
As the virus transmits from person to person, so to avoid mass gathering, the Central Govt. of India imposed Section 144 of CrPC which says “Power to issue order in urgent cases of nuisance of apprehended danger”, the time limit for it is 02 months but can be extended to 06 months in certain cases. If there is a violation of the Section 144 then there is a penalty for it.
It was considered that Section 144 of CrPC is violative of Article 19(1)(b) of Constitution of India which provides “Right to Assembly” but this is not an absolute right, restrictions can be imposed and under the reasonable ground or restrictions one can be put to limitations.
The imposition of Section 144 was not enough as it only restraints assembly whereas, other things are available in the market.
THE CENTRE AND STATES LATCHED ON TO TWO ENACTMENTS
1. EPIDEMIC DISEASES ACT 1897
This Act came into being after the “Bombay Bubonic Plague Epidemic of 1896”, and Section 02 and 02A of the said Act gives power to the Central and State Govt. to take necessary steps in the epidemic situation to control its outbreak, even if the steps are not mentioned in any law practice or theory in the country as normal provisions of law are not enough in this situation.
The scratchy powers under this Act are expanded by Amending Ordinance of 2020 to add Sections 01A, 02B, AND 03A to protect health workers from acts of violence and expansion of Section 02A to regulate movement of all vehicles and persons.
If there is a violation of the provisions of the Epidemic Diseases Act 1897, than it is punishable under Section 188 of Indian Penal Code, i.e. “Disobedience to order duly promulgated by public servant” which may extend to 01 month of imprisonment or with fine which may extend to Rs. 200 or with both and if such disobedience causes danger to human life, health and safety than it may extend to 06 months of imprisonment.
2. DISASTER MANAGEMENT ACT 2005:
It is a modern legislation which postulates “prevention and mitigation effects of disaster and for undertaking a holistic, coordinated and prompt response to any disaster situation”.
The Ministry of Home Affairs (MHA) invoked lockdown under Section 06(2)(i) of Disaster Management Act 2005.
The MHA published the guidelines using Section 10(2)(1) of Disaster Management Act 1955, on the measures State and Central Govt. must take during the lockdown.
THE QUESTION AROSE: Has Central Government power to pass an order under the Disaster Management Act 2005? Is it constitutionally valid?
YES, as Article 245 of the Constitution of India states that the Parliament or Central Govt. may make laws for whole or any part of the state. Whereas, Article 246 provides for the “Distribution of Legislative Subjects” between the Central and State Govts. It does so by creating three list, enumerated in the Seventh Schedule of the Constitution where the legislative competence to deal with the current pandemic appears to fall under Entry 97 List I.
The public health and sanitation; hospital and dispensaries, is a State Subject under Entry 06 List II.
There is also concurrent power with the Centre and the States in Entry 29 List III for prevention of the extension from one State to another of infectious diseases.
Since, both Central and State Govts. are empowered to legislate on an entry in the Concurrent List, a possible collision or inconsistency between the two legislations cannot be ruled out.
Under Entry 06 List II State Govt. can direct their respective District Magistrates to impose lockdown where only essential supplies are available.
NOW THE QUESTION IS WHAT ARE ESSENTIAL SUPPLIES?
Section 03 of Essential Commodities Act 1955 counts what are essential commodities and what items are to be avoided.
Schedule 01 of Essential Services Act provides a list of services in the category of essential that would be provided during the period of lockdown.
In the case of PASCHIM BANGAL KHET MAZDOOR SAMITY Vs. STATE OF BENGAL, the Supreme Court held that govt. is obligated to provide adequate health facilities to the citizens of citizens.
THE LAST AND THE TOUGHEST STEP TAKEN BY THE GOVERNMENT WERE: “CURFEW AND QUARANTINE”
WHO guided, test the suspected person, if found positive, isolate immediately, and if someone violates the provisions of quarantine rule then it is a dangerous crime which has been described under Section 269 of CrPC “Negligent act likely to spread infection of disease dangerous to life” punishable for a term of 06 months or fine or with both and Section 270 of CrPC “Malignant act likely to spread infection of disease dangerous to life” punishable for 02 years of imprisonment or fine or with both.
Disobedience to quarantine rule is also punishable under Section 271 of IPC for a term of 06 months or with fine or both. Our quarantine or isolation laws are very mild in comparison to countries like North Korea where Military Laws were imposed to enforce quarantine in the wake of Coronavirus pandemic.
It was being considered that the Curfew and Quarantine rules are violative of Article 19(1)(d) of the Constitution of India which says “All the citizens shall have the right to move freely throughout the territory of India”, but Article 19(5) states that sub clauses (d) and (e) of the said clause shall affect the operation of any existing law if it imposes or prevents state from making any law imposing “reasonable restrictions” in the interest of public.
A COMPARATIVE STUDY WITH INTERNATIONAL LAWS
If we talk about foreign laws so, the U.S. Govt. has enacted The Coronavirus Act 2020, which deals with all issues concerning Covid-19 including emergency registration of healthcare professionals, temporary closure of educational institution, restricting gatherings, etc.
Whereas, Singapore has passed the Infectious Diseases Regulations 2020 which provides for issuance of stay orders which can send at risk individuals to a government specified accommodation facility.
Both the laws mentioned above set out unambiguous conditions and legally binding obligations. Under the Singaporean Regulation, the violator may be penalized up to dollar 10,000 or face 06 months of imprisonment or both. In contrast, Section 188 of Indian Penal Code has a fine amount of Rs. 200 to Rs. 1000 or imprisonment of 01 to 06 months and the proceedings under the Section can only be initiated through private complaint and not by FIRs.
International Human Regulation (IHR) is a legally binding instrument of International law which was entered in 2007, it aim is to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks and that avoid unnecessary interference with international traffic and trade.
Under Article 06 of IHR, WHO mandates to provide for information of any of such health emergencies that can have serious implications over the world health care.
Article 10 of IHR, mandates WHO to seek verification from States of unofficial reports of pathogenic micro-organisms, under which States are bound to provide this information.
Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, 2001 makes understanding the law easier.
Article 02 of the Draft Article, requires the State to prevent, stop and redress significant transboundary harm to other States, which are originating under that State jurisdiction.
Further 03 and 04 of the Draft Article, talks about the types of duties which the State must carry such as monitoring, supervision, assessment, legislation, administrative policies, regulation enforcement.
Article 253 of Constitution of India allows Union Govt. to enact a law to give effect to the IHR- which asks for setting up mechanisms to prevent, protect against, control and provide a public health response to international spread of disease.
CESSATION
To combat against such belligerent situation a nation requires an adequate legal framework which provides the authority appropriate force to fight against such pandemic diseases.
Our country is trying its best to save its citizens from becoming a prey to this pandemic disease Coronavirus (COVID-19) but there is also a need to make the Epidemic Diseases Act 1897 more staunch. As this Act is the base on which the whole procedure to fight back depends.
A Public Health (Prevention, Control and Management of Epidemics, Bio-terrorism and Disasters) Bill was drafted by the Ministry of Health and Family Welfare in 2017 to empower local govt. bodies for taking swift action during emergency situations. Had it been enacted, the authorities would have been better equipped in the present scenario.
Nobody can deny that the Government is doing its best to save the precious life of its citizens but to reduce it from spreading its WE who can do it. It’s time that we show some unity, solidarity between the citizens of the country towards saving life of each other.
Let’s act as responsible citizens for the sake of humanity.
“NISI TE PATRIAE CUSTODEM”
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