Does the Constitution Allow Modi to Declare a National Emergency Over COVID-19?

If, heavens' forbid, emergency-like measures are called for, the constitution of India may lack the flexibility to give the government a free hand.

The new coronavirus apparently made its way into the human universe from a wet market in Wuhan. It has now been months, and having ravaged humanity the world over – from the Leaning Tower of Pisa to the Statute of Liberty – it knocks at our doors. As matters stand, India is at the precipice of perhaps its greatest public health emergency since independence.

While our WhatsApp group chats are clogged with desi cures, videshi medical tips and corona memes, it is worth asking whether our laws and legal system are equipped to tackle a challenge of such magnitude.

Interestingly, the law which is being invoked by state after state as per the Central government’s advice is of 1897 vintage. It is four-and- a-half sections strong.

A law of colonial vintage…

The Epidemic Diseases Act, 1897, has as its object “better prevention of the spread of dangerous epidemic disease”. Committed to brevity, this law does not even define what is an “epidemic disease”. The Delhi Health Bill which is still on the drawing board, uses the term “hazard” instead, and defines it as the outbreak of a disease or epidemic, or any event or situation or condition that may cause or result in loss of life, harm to the safety, or harm to the health of persons’ or destruction of, or damage to, property or any part of environment.

Section 2 of the 1897 law says that if the state government is satisfied that the state or any part, is ‘visited by or threatened with an outbreak’ and “ordinary provisions of law are insufficient’, it can take, require or empower any person to take measures. This would include providing for expenses and for compensation. Section 2A empowers the Central Government to cause inspection of and detain any ship or vessel arriving at any port.  Section 3 provides for penalty and Section 4 protects actions taken by persons in good faith.

…Updated with new regulations

On March 12, 2020, under this law, the Lt Governor of Delhi has notified the “Delhi Epidemic Diseases, COVID-19, Regulations, 2020”.  The salient points of the regulations are, as follows:

1. All hospitals (private and government) to have Flu-corners to test for suspected cases.

2. History of travel to be recorded, asymptomatic person should be placed on self –quarantine.

3. Prohibition on unauthorised dissemination of COVID information in print or electronic media.

4. Private Laboratories prohibited from directly testing for COVID, samples to be routed through Nodal Authority.

5. Right to impose home or institutional quarantine.

6. Right to coercive surveillance, inspection, inquiry and examination.

7. Mandatory notification obligation on health professionals.

While, the brevity of this law might be a carte blanche for the executive, we must remember, this was a pre-constitutional law and post 1950, the limitations of fundamental rights have to be read into the same.

The constitution guaranteed the fundamental rights of equality, freedom of speech, equal access to public employment, expression and association, freedom of movement, the right to life and so on and so forth.

While we all would wish this threat to blow away with least damage, it is prudent to be prepared for the worst. In a situation of grave crises with lakhs of citizens infected and many fatalities, the pressures on our woefully inadequate public resources such as hospitals, shelters, transport, etc cannot be overemphasised. In utter desperation and panic, people taking the law into their hands cannot be entirely ruled out.

In a situation of grave public emergency created by corona virus-driven internal disturbance, can the ruthless model of the Peoples’ Republic of China be replicated in India? We are, after all, a rights-based democracy functioning under a Constitution.

The 1897 law and the legal regime briefly examined above can no doubt help the state to an extent, for instance in matters of inspection and quarantine. However, if, god forbid, things were to worsen, a situation could sadly arise where practicality would come in the way of constitutional provisions. Let us say, if, faced with massive infections and fatalities, the government was opt for the emergency recruitment of doctors, would it have the luxury of time for advertisements, UPSC selections, interviews, etc that Article 16 may demand?

Remedying the legal lacuna

The anachronistic nature of the 1897 law also becomes apparent when one glances at the relatively recent Disaster Management Act, 2005. The DMA offers an array of weapons to combat disasters, establishing a multi-tier system, with governments and authorities constituted under or brought within the purview of the DMA, operating at the national, state, district and local levels.

Wide ranging powers have been accorded to the functionaries under the DMA, including restricting or controlling traffic, people’s movements, making available necessary resources, requiring experts and consultants in the field of disasters to provide advice and assistance for rescue and relief, procuring exclusive or preferential use of amenities, deployment of military forces, coordinating with other countries and international organisations etc. The DMA provides for formulation of plans, policies and guidelines at the national, state and district level, and requires all authorities to act in accordance. In fact, any person obstructing the functioning of any authority under the Act or implementation of its provisions, is liable to face punishment under the DMA.

While some might argue that the DMA offers effective and even aggressive measures to combat any kind of disaster including epidemics, such an approach is problematic because of two issues.

First, while the definition of a “disaster” under the DMA may be wide enough to include an epidemic and while guidelines regarding biological disasters have been issued under the DMA, it does not contain any provisions to specifically address the unique conundrums thrown up by an epidemic, nor does it incorporate the nuanced approach required to be taken in public health emergencies of  such a level. Therefore, such an epidemic would require a more specific legislation rather than being dealt with using a general law that lumps it with natural disasters or even acts of bioterrorism.

Secondly, considering the exponential rate at which the corona virus pandemic is growing, even the aggressive measures provided for in the DMA may fall short of adequately tackling with it. It may be argued that even more drastic and effective steps are needed, and the constitutional mandate for according the authorities with the necessary powers to take such steps in these contingencies needs to be explored.

The first of these two issues, i.e. the need for a specific legislation and to replace the outdated 1897 law, has also been recognized by successive governments at the Centre, which culminated in the introduction of the National Health Bill in 2009, and the Public Health (Prevention, Control and Management of Epidemics, Bio Terrorism and Disasters) Bill, in 2017. However, as on date, the 1897 law continues to be in force, and as mentioned earlier, the government has notified regulations pursuant to this law.

The second of the two issues i.e. the need for delineating the constitutional mandate in order to take more drastic and effective steps than what is allowed by the current legislative framework, takes us to the emergency provisions of our constitution.

Epidemics as grounds for emergency?

Article 352 of the constitution deals with proclamation of an emergency. As it originally stood, an emergency could be proclaimed on grounds of war, external aggression and internal disturbance. During an emergency, Article 353, permits (1) the Central government to direct any state on how to use its executive power (2) permits parliament to make laws even in matters which are in the state list. Article 358  suspends Article 19 during emergencies. Article 359 suspends enforcement of fundamental rights during emergencies.

Indira Gandhi’s invocation of ‘internal disturbance’ as a ground to impose emergency on June 25, 1975 prompted the Janata Party-led government which came to power in 1977 to introduce the 44th amendment to the constitution. This not only substituted ‘internal disturbance’ as a ground with ‘armed rebellion’ but also plugged many loopholes exposed during those dark times –  such as President Fakhruddin Ali Ahmed acting without cabinet advice and the Supreme Court holding that even the right to life stood suspended during an emergency.

This may have been a classic case of throwing the baby out with the bath water. Yes, the term ‘internal disturbance’ was broad and expansive and had indeed been subjected to abuse by an autocratic ruler, but did this warrant its total obliteration from the statute? The drafters of the constitution were conscious that all kinds of emergency could not be anticipated and addressed and an element of flexibility that the phrase ‘internal disturbance’ provides was essential.

It was noted in the report of the Sarkaria Commission, which had been set up to examine Centre-State relations,  that ‘internal disturbance’ was meant to convey ‘something more’ than simply internal violence. In fact, the report goes on to state that such an ‘internal disturbance’ may even be ‘nature-made’ and would include epidemics, earthquakes, cyclones etc which may ‘paralyse the government of the state and put its security in jeopardy’.

While ‘internal disturbance’ has been replaced in Article 352, it continues to figure in Article 355. Article 355 casts a duty on the Union to protect all states against external aggression and internal disturbance, and to ensure that the government of every state is carried out in accordance with the provisions of the constitution.

In the context of ‘internal disturbance’, Article 355 may seem oddly vestigial, considering that it has been recognised as providing a justification and corresponding obligation for emergency action under Article 352 and 356, and ‘internal disturbance’ no longer features in Article 352.

Article 356 provides for the imposition of emergency in a state in case of breakdown of the constitutional machinery in that state. The Sarkaria Commission report notes that even a ‘physical break down’ can amount to a constitutional breakdown and mentions a natural calamity, disaster or epidemic, which paralyses the government machinery – and which the state government is unable or unwilling to exercise its power to relieve – as an instance of such a breakdown. It could also be argued that Article 355 does empower the government to take measures to deal with ‘internal disturbances’ that may not approach the severity and gravity contemplated in Article 356. However, under Articles 355 or 356, the government will be unable to exercise the drastic measures contemplated in Article 352, howsoever severe an internal disturbance might be, because of its substitution with ‘armed rebellion’ in that Article.

Therefore, while a public panic situation and mass lawlessness triggered by the corona virus could be easily addressed under the umbrella of ‘internal disturbance’, the existing criteria for imposition of the most drastic measures by invoking an emergency under Article 352 – namely war, external aggression and armed rebellion – would not cover such a situation.

Of course, there is always the Doctrine of Necessity which has often been invoked by our neighbouring state to address and paper over circumstances when an infringement of the law or the constitution is justified on grounds of necessity. This is founded on the principle “necessitas non habet legem”  –necessity knows no law. In the times of Corona, we should not lose sight of the creative ability of the law to uphold its own majesty.

Financial emergency and beyond

The public health aspect apart, the true economic impact of such a global epidemic cannot even be imagined. Sectors such as tourism, travel and entertainment could be devastated beyond measure as would be the fate of millions of informal workers. So our survey would remain incomplete if we did not address another untouched constitutional provision – Article 360, which provides for “Financial Emergency”. When this kind of emergency is proclaimed, the Centre can direct the states to “observe such canons of financial propriety” as it may specify. It could also require all money bills passed by state legislatures to be cleared by the president. Salaries of government employees, including judges, can be reduced during such a financial emergency.

While world leaders are initiating emergent measures to deal with this “mahamari” as an Indian Supreme Court judge has termed it, the India prime minister’s Thursday night address advanced the twin concepts of “janata curfew” (people’s voluntary sequestering) and making noise in appreciation for health workers at 5PM on Sunday. How effective these measures would be only time will tell. There is fear that if the situation worsens, we might even see actual curfews – as have been imposed in places like China, Italy and Iran.

We may mischievously touch upon another provision, perhaps the most enigmatic one in our constitution. That is Article 34. Believe it or not, this permits parliament, by law, to ratify all acts that may be committed during ‘martial law’. There was no debate on this article in the Constituent Assembly and there has been since then little literature on it. Even constitutions of countries which have been ravaged by martial law like Pakistan and Bangladesh do not have such provisions. What it seems to suggest is that if in some circumstances, martial law has to replace rule by the constitution, parliament can regularise all actions taken when that period is over.

Such a bleak picture is the luxury of a constitutional lawyer in lockdown. Hopefully all this will tide over without having to test out our constitutional preparedness.

Sanjoy Ghose and Rhishabh Jetley are advocates practising in the Delhi high court.