Proclamation of Medical Emergency: A Constitutional Dilemma

  • Hita Sharma and Rishav Sharma
  • Show Author Details
  • Hita Sharma

    Practising Advocate in India

  • Rishav Sharma

    Student at TERI School of Advanced Studies, India

Abstract

India has witnessed a sharp surge in active coronavirus cases. The second wave of Covid-19 in India has wreaked havoc. Through this paper, the authors inquire about the inclination of the masses towards the insertion of a provision for a medical emergency in the Indian Constitution to regulate the social and economic upheaval that has been in confrontation with the origin and past usage of the emergency provision. The authors also intended to highlight the stark contrast as regards the different jurisdictions with different model of government and their reasons to effectuate the emergency provision. Therefore, the paper examines, while taking into consideration the archaic, ineffective legislations, along with a few recent and effective guidelines and plans at the national and state level, to answer a cardinal question as to whether there is a need for a proclamation of emergency to tackle a pandemic. The objective of the paper is to explore a few possible alternatives that could help the nation to contain the pandemic, including the active involvement of the judiciary, thereby directing the state and center to adopt more stringent measures to prevent deaths and to realize their obligation towards their citizens. The paper further analyses the constitutional response of proclamation of like nature in the past and critically scrutinize the new powers of government to trace, track and control their citizens’ daily lives in response to the coronavirus.

Type

Research Paper

Information

International Journal of Law Managment and Humanities,
Volume 4, Issue 2, Page 2801 - 2809

DOI: http://doi.one/10.1732/IJLMH.26618

Creative Commons

This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

Copyright

Copyright © IJLMH 2021

On 11th March 2020, the World Health Organization declared Covid-19 as a global pandemic. The deadly virus has infected millions of people around the world, overwhelming an already neglected health infrastructure. The second wave of Covid-19 in India has wreaked havoc. There has been an acute shortage, inter alia, of the vaccination, drugs like Remdisivir, supply of oxygen and even beds in the hospitals, which are an essential part of the treatment. On account of such mismanagement by the government, the judiciary has shown active involvement by taking suo motu cognizance to address the pressing issue at hand. According to the order of the special bench of Delhi High Court, dated 21st April 2021, the Supreme Court of India vide Suo Motu Writ[3] has directed the Central Government to place a national plan before the Court for dealing with the essential supplies in an even-handed manner according to the advice of the health authorities. The situation has kindled a debate on the insertion of provision of a medical emergency in Part XVIII[4] of the Indian Constitution to contain the panic situation in the country. The situation is grim, but the question of inserting a provision to handle the virus is still baffling.  The idea might sound effective, but if we trace the origins of the provision, it has faced severe criticism from jurists and scholars. They have argued it is regressive in nature and is rooted in colonial legislative legacy. The proclamation in the past has served as an iron fist to repress the democratic ethos of India. Hence to hold an antagonistic stand against such insertion in the Constitution creates a rather more imperative stand.

To further adduce the provision, Constituent Assembly debates are the best source for its interpretation. The assembly was split into two factions. One insisted on a provision present in the Government of India Act, 1935, i.e., Section 92, whereas the other faction insisted on not having any such provision in the Constitution as it may dilute the states’ political authority. Dr Ambedkar insisted on inserting the provision to authorize the centre to safeguard the provinces from external aggression and internal commotion. On the other hand, he also insisted that there should not be a wanton invasion by the centre, which is arbitrary and unauthorized by the law. Prof. K.T Shah was a staunch critique of such a regressive law as such a provision in the Constitution would be a threat to the very foundation of constitutional democracy. H.V Kamath called the insertion of such a provision as ‘Foundation of totalitarian State’, which was completely against the ethos of constitutional democracy as such a provision would jeopardize the rights and liberties of citizens.[5]

Even after strong criticism, the idea that makes the Indian Constitution the lengthiest prevailed— that nothing should go unwritten. Indian democracy witnessed its grim days when an Emergency was declared. It was not a ‘festival of discipline’ as intended by the government but ‘the graveyard of democracy’[6] After the lapse of twenty-one months, an electoral battle was fought, and the 44th Constitutional Amendment, 1978, tried to harmonize the defunct public administration.[7] In 1987, Sarkaria Commission submitted its report[8] on ‘Emergency provisions’ (Chapter VI), whereby it recommended a cautious use of emergency provisions. It noted that only in extreme circumstances as a measure of last resort when all available alternatives have been exhausted, that this provision should be invoked. The Commission stressed resolving the crisis at the state level before taking the recourse of emergency provisions. Thereafter, the proposition was reiterated in the case(s) of H.S. Jain v. Union of India[9] and

S.R. Bommai v. Union of India[10] in light of exhausting all the alternative measures before resorting to the proclamation of emergency.

The constant challenge and despair in the history of invoking emergency and using an alternative unitary government have made the jurists sceptical of its proclamation as it attracts blatant encroachment upon civil liberties. The idea of insertion of the medical emergency clause is borrowed from countries that have such a provision in their Constitution. In doing so, one fails to acknowledge that such countries have a unitary form of government. Comparatively smaller in size or are federal governments. Whereas India has a unique model of a unitary government with the essence of federal governance.

Unlike the United States, India has a single constitution where Art 245 sets limits to the power of Parliament and Legislatures of the state; Art 246 distinguishes the subject matters of the law enacted by the Parliament and the State Legislature wherein ‘Health’ is classified under the State List i.e., Schedule VII List II Entry 16. Lately, the 14th Finance Commission Report[11] recommended the devolution of a greater share of revenue to the states to boost the health sector of India.

Right to health and medical care is a fundamental right protected under Article 21 to be read with Article(s) 39(e), 41 and 43 as enshrined in the Indian Constitution. The right to life under Article 21 has a wider scope. As recognized in the Consumer Education and Research Centre v. Union of India[12], the expression ‘life’ assured under Article 21 does not connote mere animal existence or continued drudgery throughout life. Instead, the said expression has a much wider meaning which includes the right to livelihood, better standard of living, hygienic conditions in the workplace and leisure. Thus, recognizing health as a fundamental right creates an obligation on the legislature to provide for an effective and robust legal framework against such a disaster. However, Article 34 of the Indian Constitution endows the Parliament to impose restrictions upon the rights given to the citizens under Part III of the Constitution while martial law is in force. The mischievous use of the provision could open the flood gates of rampant violation of Fundamental Rights. The reason being, when martial law is enforced, the appellate jurisdiction of the High Court and Supreme Court would be suspended. Post the 44th Constitutional Amendment in Article 359 provided a safety net allowing the people to retain rights endowed in Article 20 and 21.

Two prime statutes currently regulate the Medical Emergencies, namely, the Epidemic Diseases Act, 1897 and the Disaster Management Act, 2005. Former is archaic with a limited approach, making it ineffective and weak. For instance, the Act inclines quarantine measures while ignoring other possible methods of outbreak prevention and control. The primary target of the Act is travel by ship and waterways while ignoring air travel. It also ignores the possibility of a mass exodus of daily wage workers on account of lack of work opportunities driven by hunger and disturbed emotional and mental state, which was non-existent in those days. The latter statute being much more recent, recognizes an institutional framework at the national and state level with its respective committees, carrying out specific functions to observe centre-state cooperation to contain a disaster. However, the audit report[13] by CAG post-Uttarakhand disaster in 2013 reflects the deficiencies present in the Disaster Management Act, including deficient supervision and quality control mechanisms of various departments given poor compliance to instructions issued during the inspection by the authorities along with non-issuance of financial sanction by the State Government despite funds being released by the centre. Given the shortcomings highlighted by the audit report, CAG provided many suggestions to the state governments like strengthening the financial management for preventing the diversion and blockage of funds, ensuring timely release of funds for the various projects; strengthening the mechanism for properly assessing and identifying damages and submitting viable proposals on time for enabling the State to avail and utilize funds as per approved outlay; strengthening the State Disaster Management Authority (SDMA) so that it is equipped to fulfil the responsibilities as stipulated in the Disaster Management Act, 2005 and State Disaster Management Plan. The SDMA should lay ideally down stringent timelines for adoption and initiation of measures required to be undertaken by the line departments to prevent and mitigate disasters. The SDMA may also consider entrusting the responsibility for monitoring compliance to these timelines to the State Executive Committee or may consider creating a separate empowered Committee for the purpose.

Making India resilient to biological disasters, the 2008 guideline[14] lays down a Sendai Framework Monitor which ordains global standardized Disaster Risk Reduction (DRR). The guideline recommends international cooperation to prevent, protect, control and provide a public health response to the international spread of the disease by following certain just principles of regulation and its implementation should be guided by the UN Charter and the Constitution of the WHO. National Policy on Disaster Management, 2009[15] provides for a legal/financial framework by the creation of institutions that shall play an active role during the outbreak. At the national level, the Ministry of Health & Family Welfare along with the National Crisis Management Committee and National Executive Committee shall coordinate along with National Center for Diseases. At the state level, health infrastructure shall be developed to contain and attend such an outbreak. Its spread should be shared with Integrated Disease Surveillance System which will be expanded to all districts and shall be integrated with all laboratories i.e., DRDO, ICMR and state government laboratories. At the district level, the DM (District Magistrate) shall coordinate the entire plan along with the State Disaster Management Authority.

Followed by the guidelines of 2008, baby steps were taken in 2017. Acknowledging the fact that the Epidemic Diseases Act, 1897 is inefficient at tackling an outbreak, there arose a need after several outbreaks like bird flu and swine flu (zoonotic outbreak) to legislate an enactment attuned both to the changing circumstances and microbial mutations. In 2017 Public Health (Prevention, control and management of Epidemics, Bio-terrorism and Disaster) Bill 2017 was tabled. It proposed to repeal the inefficient enactment of the past with penal sanctions which would have increased the punishment and fine under Section 269 and Section 270 against negligence or malignant act of a person contributing to the transmission of the disease. However, a penal provision would have ravaged the civil liberties of the citizens during an outbreak as the Bill proposed to empower the medical officer to inspect any premise and administer vaccine without consent. Suspension of civil liberties was observed under the guise of another obsolete statute, namely, the Madras Public Health Act, 1939. The said Act allowed for measles-rubella vaccination campaigns at schools without parental consent. The 2017 Public Health Bill was much more stable but could not come into existence because it allocated too much power to the Centre. Much like the 1897 Act, the 2017 Bill had no blueprint for a coordinative framework between Centre and States.

Further in 2019, the National Disaster Management Plan was drawn following an updated replica of 2008 Guidelines prepared by the National Disaster Management Authority which was the first national plan ever prepared in the country with the vision to make the country, both disaster-ready and resilient. The plan also highlighted the financial arrangements to manage residual risks, by mainstreaming the DRR which required the states and the respective ministries to adopt adequate provisions as an integral part of the main budget, unlike the recommendations of the 15th finance commission, to insert the subject ‘health’ in the concurrent list which has foreclosed any possibility of centre-state cooperation.[16]

The emergency proclamation has earned a bad reputation throughout the world. Its proclamation has a history where human rights and the vital ethos of democracy are often jeopardized. Emergency has proven itself to be the iron hand of the executive to suppress the vital essence of democracy. The pro-emergency supporters argue that the proclamation of emergency is time-driven which has to be renewed. However, in the past certain enactment had come into existence that had outlived its life. For instance, certain enactments have wreaked havoc when undemocratic enactments came into existence to quell the panic situation. The  Patriot Act which was enacted shortly after the 9/11 terrorist attack was due to be expired on 31st December 2005 is still operational. Viktor Orban, the current President of Hungary had enacted an authoritarian bill that extended his tenure to an unknown period in the name of a medical emergency. The state of emergency has come to an end but the government has the authority to impose a similar emergency with little transparency and minimal judicial or parliamentary scrutiny.[17]

European Convention on Human Rights restricts the member states to invoke state emergency and allows such derogation only in the time of war or other public emergency threatening the life of the nation.[18] Spain, United Kingdom and Italy are signatories of ECHR and are the worst affected by COVID-19 yet have resorted to Regulations/Ordinances instead of invoking state emergency.

Indian Constitutional lacunas after the political upheaval in 1977 general elections were filled by the 44th Constitutional Amendment 1978, but Article 355 and 356 accommodated the provision for a contingent emergency like health where the union may take over under the rubric of ‘internal disturbance’. The cardinal question is whether there is a pressing need for a proclamation of emergency to tackle a pandemic? The emergency proclamation would suppress the power of the states which are working relentlessly in curbing the spread. The emergency provision would rather make the decision-making provisions more sluggish. The states under such circumstances require decision making autonomy to curb the transmission on the local level. There are a plethora of action plans which are pertinent to combat the contagion of the virus, the legislature needs to stick to those plan/guidelines to prevent its transmission instead of invoking Emergency. In the past, the members of the Joint Parliamentary Committee had shown a strong dissent stating that such provision would be an ‘infringement in the domain of the provincial autonomy. During the Emergency brave minority had nurtured constitutional morality, H.R Khanna was one of them. In his book ‘Making of India’s Constitution’ he writes, “If the Indian Constitution is our heritage bequeathed to us by our founding fathers, no less are we, the people of India, the trustees, and custodians of the values which pulsate within its provisions! A constitution is not a parchment of paper, it is a way of life and has to be lived up to. Eternal vigilance is the price of liberty and in the final analysis, its only keepers are the people. The imbecility of men, history teaches us, always invites the impudence of power’.

If there is anything that we have learnt from the previous strain of covid-19, it would be to stay indoors as much as possible. Moreover, mass gatherings to suffice religious contentment should be avoided. Instead, the religious-inspired institutions can volunteer to promote helpful information, prevent and reduce fear and stigma, provide reassurance to the people in their communities, and promote health-saving practices by conducting rituals and faith-related activities virtually. Further, the Government has not yet banned the export of the vaccine, even being fully aware of the domestic requirements. The Government was also disagreeable with foreign manufacturers. For instance, concerns over price and a liability clause in case of adverse effects prompted Pfizer to withdraw its application for authorization. Thereafter, the Government constituted a six-member inter-ministerial panel on 17th March 2021, to facilitate capacity “augmentation of domestic vaccines” for Covid-19. This panel was also supposed to review requests received from indigenous manufacturers to be allowed to manufacture the vaccine by remodelling their facilities. The Government has also approved a third vaccine, Russia’s Sputnik V, on 13th April 2021. The Russian Direct Investment Fund has signed agreements with six Indian companies to manufacture Sputnik V, and expects to produce 850 million doses (Approx) in India for distribution around the world. The availability of the vaccine for India is yet to be estimated.[19] Thus, formulating an open-ended strategy to tackle the issue is imperative. Moreover, measures like imposing a nationwide lockdown and hefty penalty on violation of the guidelines issued by concerned State Governments shall bore effective results. Furthermore, active participation of the Judiciary, seeking a response from the Central and State Government on devising an operative plan to meet the requirements of hospital beds, oxygen and the essential drugs, helps the Government to realise that it cannot assume unprecedented control without a system of checks and balances. Thus, the role played by the judiciary is highly appraisable. The Telangana High Court while hearing a Public Intrest Litigation[20] reiterated in the order that the right to health is a right to life. And medical emergency cannot be an excuse to trample upon the fundamental rights of the people. This is historically evident that absolute power corrupts absolutely, such insertion could be a roadmap to authoritarianism.

In conclusion, while witnessing the grim situation we have some recommendations, However, these are Adhoc recommendations till the curve is not plateaued.

The recommendations are enumerated herein:

  1. Immediate take-over of all private health care utilities by the Government to ensure free of cost treatment for all Indians. No out-of-pocket expenditure for medicines or testing pertaining to COVID 19 and related symptoms.
  2. Nationalization of all vaccine making plants/facilities in India by the Government of India in order to ensure free of cost vaccination to one and all and kill the ‘profit motive in the national interest’. The vision of free of cost inoculation could only be achieved if the state takesover vaccine production plants. This would work to stop the company from offering discriminatory and differential rates to different states in India. Nationalization would also allow for streamlining the production process for quick national delivery. Export for profit motives would end. The oxygen export by India last year is a centrepiece instance of negligence in nationalizing oxygen sales.
  3. A complete closure of all private utilities such as malls, schools, dharmshalas, community halls etc., and their immediate conversion into health facilities by the Government and other public stakeholders.
  4. Maximum onus should be put by the Government to enhance oxygen manufacturing and delivery mechanism. The Government should ensure that industrial oxygen is diverted towards the health system.
  5. A strict moratorium on all forms of public gathering, political, social, religious or otherwise.

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[3] In RE: Distribution of essential supplies and services during pandemic, WP(C) No 3/2021

[4] Article 352-360, Constitution of India, 1950

[5] Constituent Assembly Debates, Volume IX, 4th August 1949 https://www.constitutionofindia.net/constitution_a ssembly_debates/volume/9/1949-08-04

[6] Arun Jaitley, A tale of three Emergencies: Real reason always different, Indian Express, Nov 5 2007 http://archive.indianexpress.com/news/a-tale-of-three-emergencies-real-reason-always-different/235992/2

[7] The Constitution (Forty-Fourth Amendment) Act, 1978

[8] Report of the Sarkaria Commission, 1987, Chapter 6, p.179-180

[9] H.S. Jain And Ors., Etc. vs Union Of India (Uoi) And Ors, 1997 1 UPLBEC 594

[10] S.R Bommai vs Union of India, (1994) 3 SCC 1

[11] Report of the 14th Finance Commission, 2015

[12] Consumer Education and Research Centre v. Union of India, (1995) 3 SCC 42.

[13] Report of the Performance Audit on Reconstruction of Infrastructure Post 2013 Disaster in Uttarakhand, Government of Uttarakhand, 2018.

[14] National Disaster Management Guidelines-Management of Biological Disasters, 2008

[15] National Policy on Disaster Management, 2009

[16] Report of the 15th Finance Commission for FY 2020-21

[17] Lydia Gall, Ending Hungary’s State of Emergency Won’t End Authoritarianism, 29th May 2020, Human Rights Watch https://www.hrw.org/news/2020/05/29/ending-hungarys-state-emergency-wont-end-authoritarianism

[18] Article 15, European Convention on Human Rights.

[19] Neeta Sanghi, How the Modi Government Overestimated India’s Capacity to Make Covid Vaccines, 22nd  April 2021, Science, The Wire https://science.thewire.in/health/narendra-modi-government-overestimated-india-covid-vaccine-manufacturing-capacity-shortage/

[20] Ganta Jai Kumar vs State of Telangana, Writ Petition(PIL) No.75 of 2020

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