Evolving a legal framework in dealing with the Pandemic

COVID-19 virus that is being colloquially termed as Chinese virus is engulfing entire world at an alarming rate with unprecedented suffering and deaths being witnessed. The National and International Institutions are facing this awful challenge. We are all aware of the fact that many virologists, epidemiologists, medical practitioners and scientists including World Health Organization have engaged themselves relentlessly in finding the way out to eradicate this pandemic.

India, under such critical situation is facing this challenge and responding beyond expectations as forerunner. Under the leadership of our Prime Minister and all the Chief Ministers of States the Government as well as local bodies are implementing bundles of measures relentlessly. Mostly, none of us anticipated any this pandemic to hit the world. Though it is true that Constitution of India, legislations thereunder does not provide any specific legal provisions, Governments are expected to perform within the framework of existing set of laws.

Prior to the independence, somewhere around 1897 i.e., in the era of British Epidemic Diseases Act, 1897 was enacted for the purpose of eradication of deadly diseases which is still in force. But post-independence and after the Constitution coming in to force, no any special law was enacted in this regard. However, expect for some minor changes made during the period between 1955-1968 no any major changes were brought in this connection. At this juncture, while our nation is facing the adversity, it is necessary to critically analyse the relevant laws.

After Constitution of India was adopted, fundamental rights and duties were conferred over all the citizens in the Country. Under the broad framework of the Constitution, provisions were made for the citizens to knock the door of court when their fundamental rights are infringed or usurped. Freedom of expression, right to engage in trade, freedom of profession, right to life, right of constitutional protection were all guaranteed to the citizens while provisions were also made to curtail the same under exceptional circumstances. All the freedoms shall be enjoyed within the meets and bounds of constitutional morality and public peace & tranquillity.

Thus under the present scenario, Government is exercising its powers to effectuate nationwide LOCK DOWN, with the backing of other legislations. Provisions have also been made for the states to enact laws based on suitability to their geographies and Separate provisions have also been made as Union, State and Local administrations.

Under the provisions of this enactment which was brought into force during the British period, only the Union Government was conferred with special powers under any circumstances of pandemic or deadly disease outbreak is observed. In addition to this, from time to time till the year of 1968 several amendments was brought in and all the powers have been conferred to the Union and State Governments so as to control the outbreak of Epidemic Diseases. Any decisions, actions or steps of the Governments made under this Act cannot be subjected to Judicial review. It is also referred explicitly that, in cases wherein if anyone fails to adhere with the regulations or orders made under this Act is liable to be punished under the provisions of Section 188 of Indian Penal Code. The Union Government has invoked the powers conferred under this Act to take control over the Novel Pandemic Covid-19 and all the State Governments and Local Administrations have been conferred with their available powers and are assigned with responsibilities.

Since this enactment is a post-independence law, various reforms have been brought in and several arrangements have been provided which are appropriate for the contemporary developments. National, State and District authorities have been appointed under this enactment. All the special powers and financial arrangements that may be required under the situation declared under the said enactment have been provided to these bodies. Special team of officers to handle the critical situation have been constituted. When such situation is declared under the said enactment, all such acts of obstructing the public servants in discharging their duties, spreading rumours, making false claims, non-co-operation with the public authorities amounts to punishable offences. Despite of all this, this enactment suffers from various discrepancies.

Under the provisions of Section 269, 270, 271 of Indian Penal Code outspreading of contagious or epidemic disease is a punishable offence and violation of quarantine rule is also a punishable offence. But, under the above said three provisions extent of punishment is lesser than two years.

Even though under the provisions of Section 307, 302, 304A of Indian Penal Code it is possible to consider the wilful spreading of contagious or epidemic diseases as the punishable offence depending upon the situation, all these stipulate the punishments under the general law in force in our Country, also the standards required to prove the guilt under such offences are critically difficult, therefore, there may arise a situation wherein governments are put under embarrassment owing to such difficulties.

Local laws

Municipal Administrations, City Corporations, Panchayat enactments have conferred special powers to the Mahanagara Palike, City Municipal Corporation, Town Municipal Corporations, Town Municipalities in connection with the epidemic or contagious diseases at the local body level with the help of local law. But, they are all in the general form and nature, and are no adequate to the situation being faced currently; there is an acute need of adopting suitable changes and amendments. However, there are some provisions where under local bodies can take some actions in view of the public welfare, within their jurisdictional limits.

As the Kerala State Legislative Assembly presently is in recess, on 26th of March 2020 an ordinance has been promulgated in the manner of ‘The Kerala Epidemic Diseases Ordinance, 2020’. It is a welcome move as the directions and guidelines issued by the Central Government have been consolidated in lieu of Novel Pandemic COVID-19 and ordinance has been promulgated. But, many opine that, this ordinance suffers inadequacy at greater levels.

Under this ordinance, it is provided that, punishments up to two years of imprisonment and fines which may extend up to rupees ten thousand upon the guilt being proved for the non-adherence of the directions and orders in respect of the Epidemic Disease and the offences under this act are treated as bailable offences thereby making the offense simple in nature. It is also suggested that, extent of punishment could have been more stringent for up to seven years at maximum and to include the offences here under into non-bailable offences and attempts to outspread the epidemic disease wilfully with malafide intention has to be treated an illegal act, and it would have been made as offence punishable with imprisonment up to ten years along with fine. Also, powers could have been conferred to punish the public servants who fail to adhere the orders, directions issued under this enactment. This could have served the purpose with much better adequacy.

Invoking the provisions of Epidemic Diseases Act, 1897, the Government of Karnataka on 11/03/2020 has brought in the rules to tackle the Novel Pandemic COVID-19, and was the first state in the country to invoke the Epidemic Disease Act and bring in such rules, also all the decisions are being taken under the said rules. Though it has been said that, said rules have conferred some powers to manage the Governmental administrative machinery, adequate recognition as an Independent enactment is lacking. These rules are in the nature of executive orders of the Government, and applicable to every individuals. Now the situation is thriving for the enactment of a more effective law or promulgation of an ordinance in order to manage the critical situation, in the manner of Kerala Government.

Whatever may be the criticism, the Kerala Government has made efforts towards the situation at hand, though not with full adequacy. In connection with this matter, both Central and State Governments have powers to enact laws. It is most appropriate to exercise this power and enact the suitable law in this regard so that critical situation like present being faced and tackled appropriately.

Problems, challenges being faced due to the Novel Corona pandemic are glaring at us, in lieu of the same several strict actions are being taken but there are miscreants who deliberately refuse to co-operate. Also, using such pandemics in the manner of bio-weapons cannot be ruled out in the modern times, raising more and more concerns towards the internal security and protection of the Country, it is the need of the hour and the Central and State Governments must enact suitable laws in this regard as expeditiously as possible.

– The Government and all the Local bodies must have all the powers to control and regulate the outbreak of Epidemic Disease.

– The Government and all the Local bodies have all the powers to take precautionary measure, control and regulate the outbreak of Epidemic Disease.

– The powers to restrict or prohibit or to completely stop the movement of all kinds and means of transportations like Road, water and Air.

– The powers to control and regulate the functioning of all Educational Institutions, commercial Establishments, factories and industrial establishments etc., in the State.

– Powers to restrict or prohibit the congregation of persons in Religious Institution and social establishments.

– All the powers to Control or to Regulate over the supply of Essential Commodities.

– Powers to control or prohibit Public gathering and Public functions; also to prescribe Social Distancing.

– Any kind of Violation of Order or Circular or Regulations passed or taken by the State or Local bodies; on conviction shall be punishable with 7 years of imprisonment and fine.

– Whoever abets or deliberately indulges himself with intention to outspread the Epidemic disease shall on conviction be punished with 10 years of Imprisonment and fine.

– Any violation or refusal to co-operate by the Public Servant to any of the Order, Circular or Notification issued by the Government or Local bodies; on conviction shall be punished with 3 years of imprisonment and fine.

– All the offences under this Act should be considered as Cognizable and Non-bailable offences.

– Strict actions against the Private Medical Establishments or Hospitals including cancelation of license for violating the Orders, circulars and Notifications issued by the Government or Local bodies.

– Any decision, Order, Circular, and Notification issued or passed by the Government or Local bodies in best interest of the state shall not be subjected to Judicial review.

– The power to regulate the unwarranted price hike of Essential Commodities or services during the Outbreak of Epidemic Disease.