Natural disasters such as cyclones and floods have primarily caused disasters in India, which is located in the heart of the Indian Ocean region, dubbed the "World Danger Belt." For the first time in the world, a pandemic has been declared a "notified tragedy" by the Ministry of Home Affairs, following the global spread of the novel CoronaVirus Disease (COVID 19). In order to...
Natural disasters such as cyclones and floods have primarily caused disasters in India, which is located in the heart of the Indian Ocean region, dubbed the "World Danger Belt." For the first time in the world, a pandemic has been declared a "notified tragedy" by the Ministry of Home Affairs, following the global spread of the novel CoronaVirus Disease (COVID 19). In order to efficiently handle this situation, India's Disaster Management (DM) Act was invoked for the first time. As authorities work to contain the country's growing hysteria, the Act's reintroduction has focused attention on one of its several parts that had previously gone unnoticed since its passage in 2005.
The Ambit of the Disaster Management Act
The DM Act was enacted with the aim of "providing for the efficient management of disasters." Under the DM Act, the National Disaster Management Authority (NDMA) is the nodal central body for disaster management coordination, with the Prime Minister as its Chairperson. The NDMA establishes procedures, plans, and guidelines for disaster management (S.6). State, district, and local disaster management authorities were also created, with high-ranking officials in charge. Both of these organisations are expected to work together.
The National Disaster Management Agency (NDMA) has provided 30 guidelines on various disasters, including the 2008 'Guidelines on Management of Biological Disasters.' The National Disaster Management Plan for 2019 includes a section on biological disasters. This is the broad legal structure through which the Union and state governments carry out their efforts to contain COVID-19.
The DM Act and the NDMA give the central government and the NDMA a lot of power. Regardless of any law in effect (including overriding powers), the Central Government may issue any instructions to any authority anywhere in India to encourage or assist in disaster management. Pressingly, all such instructions provided by the Central Government and the NDMA must be adhered to by Union Ministries, State Governments, and State Disaster Management Authorities.
This is Chapter 10 of the Act on 'Offences and Penalties' which from Article 51 to 58 enlists activities that would be deemed as criminal offences in the event of a disaster. Of these, Article 52 which guarantees imprisonment for almost two years and a fine on any person making false claims to gain relief benefits and Article 54 which enforces imprisonment of one year or a fine on anyone circulating false alarms about the severity of a disaster have gained importance in the context of COVID 19. This is because, for the last one and a half months, news and updates about this new disease have flooded the various social media platforms which lack any mechanism to check the credibility of the news.
To accomplish all of this, the prime minister should use all of the NDMA's powers (S 6(3)). This means that the decisions taken have sufficient political and constitutional weight.
There is a prominent question being raised, which is, "does announcing a lockdown under the disaster management act curtail the fundamental rights guaranteed to the citizens?"
No, The Disaster Management Act, in terms of its applicability, does not specify the disasters are covered. It gives a broad description of disaster that includes specific elements. Any catastrophe, whether it's a flash flood or severe drought, must meet the criteria outlined in the disaster description. An outbreak is included in the description because it is broad enough. After the Tsunami disaster, which was not included in the Finance Commissions' list of disasters, a generic description was issued. The goal was to ensure that if a catastrophe occurred in the future that was not protected by the specific definitions, we would be prepared. It will be better to make the concept more general so that such events/catastrophes are included. As a result, Covid-19 is protected by the Disaster Management Act of 2005's general concept of "disaster."
Federalism v. Centralism
These two legislations differ in one significant way: the Epidemic Diseases Act, 1897 allocates most power to the State Governments, with a very limited role to the Central Government. In contrast, the Disaster Management Act, 2005 shares powers and responsibilities amongst the various levels of government, with a more dominant coordinating role envisaged for the Central Government.
There have been genuine concerns that the appropriate administrative response to the pandemic must be federal and state-led, and not top-heavy or centralised. Naturally, this has political implications as well, given that many state governments are run by political parties hostile to the ruling party at the Centre.
Applicability of Disaster Management Act
State action in the context of Covid-19 has been initiated at three levels, with some degree of overlap. On the 24th of March, 2020, the central government invoked the National Disaster Management Act. The invocation of this law is questionable, as it was enacted in the wake of a natural disaster, and was evidently not intended to deal with public health emergencies or pandemics (this is evident from its provisions, which envisage that specific areas of the country may be declared as disaster-hit, for the Act to apply.)
This invocation of the Disaster Management Act centralizes the sphere of operations, giving the federal government overriding powers of enforcement, despite the fact that under the Indian Constitution, public health is a topic normally dealt with at the level of the state governments.
Amendment of the Epidemic Disease Act
The fundamental right to health and related legislative powers, together with international legal obligations, make it mandatory for India to take immediate legislative and administrative action to promote and protect public health, especially in the context of a public health emergency (PHE). India does not have a consolidated PHE guideline or law. As explained above, two major laws, the Disaster Management Act, of 2005 and the Epidemic Disease Act of 1987, dominate the legal framework of government response in case of a PHE.
In light of the COVID-19 Pandemic, the Epidemic Disease Act of 1987 was amended in September 2020 to make it more suitable for the current situation. The amendment helps provide protection for healthcare workers and expansion of powers for the central government to help fight the pandemic and other such diseases.
As per the amendment, healthcare service personnel are defined as persons who are at risk of contracting the epidemic disease while carrying out duties related to the epidemic. They include: (i) public and clinical healthcare providers such as doctors and nurses, (ii) any person empowered under the Act to take measures to prevent the outbreak of the disease, and (iii) other persons designated as such by the state government.
Further, an 'act of violence' includes any of the following acts committed against a healthcare service personnel: (i) harassment impacting living or working conditions, (ii) harm, injury, hurt, or danger to life, (iii) obstruction in the discharge of duties, and (iv) loss or damage to the property or documents of the healthcare service personnel.
As per the amendment, if an act of violence against a healthcare service personnel causes grievous harm, the person committing the offence will be punishable with imprisonment between six months and seven years, and a fine between one lakh rupees and five lakh rupees. These offences will be cognizable and non-bailable. If a person is convicted under the amendment, they will also be liable to pay compensation apart from the other punishments. In the case of damage or loss of property, the compensation payable to the victim will be twice the amount of the fair market value of the damaged or lost property, as determined by the Court. If the convicted person fails to pay the compensation, the amount will be recovered as an arrear of land revenue under the Revenue Recovery Act, 1890. When prosecuting a person for causing grievous harm to a healthcare service personnel, the Court will presume that person is guilty of the offence, unless proved otherwise.
The amendment provides for the central government to regulate the inspection of any bus, train, goods vehicle, ship, vessel, or aircraft leaving or arriving at any land port, port, or aerodrome and the detention of any person intending to travel from the port, during an outbreak.
The Epidemic Disease Act gives the states more authority and control on the ground measures being implemented based on the situation in each state. The state governments, under the ED Act, are making use of Non-Pharmaceutical Interventions (NPIs) to contain the spread of COVID-19 as there is currently no medical cure to the same. These NPIs so far include the closing of educational institutions, malls, schools, gyms, and other public places, advisories on social distancing as well as regulations regarding home isolation and quarantine.
There is, however, an issue of the use of excessive force by the states to implement these new rules. The extra power that the states can invoke with the EDA Act allows the states to grant the local officials more autonomy which leads to excessive action. The use of force and excessive power never ends well and is something to keep under consideration. The limited purpose of the law is to allow states to take extraordinary measures at the time of a dangerous epidemic disease. The laws do not establish any coordination mechanism between states and the central government at the time of a dangerous epidemic outbreak.
When these two laws are analysed, we find that the Epidemic Diseases Act confers powers to the state officials without creating obligations or accountability or imposing restrictions on the government and additionally, although the Disaster Management Act provides for government powers to manage and contain disasters, it is not a PHE-focused law, and therefore, does not specifically provide PHE specific measures and guidelines.
That being said, it is important to note that the two laws have been extremely crucial in the formulation and implementation of COVID-19 rules and protocols. The COVID guidelines are being enforced by district magistrates across the country. People who have been found to be flouting the rules have been punished by either having to pay fines, face jail time or both based on the severity under the Disaster Management Act, 2005.
An example of one such instance is when videos and photos of a wedding being conducted in a chartered flight in South India recently went viral for not following the COVID guidelines. The Tamil Nadu government, on April 26, 2021, released a new set of COVID guidelines that specified that the maximum number of guests to be allowed for weddings is 50. This chartered flight was observed to have more than 160 passengers on board. It was revealed that social distancing rules were flouted and The attendees at the on-air wedding were further observed to not wear masks. These actions were found to be in gross violation of the restrictions imposed by the Tamil Nadu government. Section 3 of the Epidemic Diseases Act, 1897, provides penalties for disobeying any regulation or order made under the Act. These are according to Section 188 of the Indian Penal Code (disobedience to order duly promulgated by public servant). The Directorate General of Civil Aviation (DGCA) on Monday ordered strict action. News agency ANI tweeted that the DGCA has issued a show-cause notice to SpiceJet and sought a detailed report on the incident.
Conclusion
Although the current laws in place, Epidemic Disease Act 1987, Epidemic Diseases Amendment Act, 2020 and Disaster Management Act 2005 help the local and central government to cohesively implement regulations that help curtail the spread of the virus, as a country with such a vast population, it is imperative for the government to formulate a specific set of PHE Laws and guidelines to be followed in events such as this.
Views are personal
Author is a practicing Lawyer at Madras High Court