Legislative Response and Constitutionality in The Time of a Pandemic
B.G.Harindranath
27 April 2020 6:11 PM IST
In 1896, the residents of Nowroji Hill slums of the present-day Mumbai were afflicted by a mysterious disease which spread rapidly affecting many city residents. The city's commerce was severely hit, and the thriving textile industry was grounded. By September 1896, Dr Acacio Gabriel Viegas accurately diagnosed the illness as bubonic plague, tended patients at great personal...
In 1896, the residents of Nowroji Hill slums of the present-day Mumbai were afflicted by a mysterious disease which spread rapidly affecting many city residents. The city's commerce was severely hit, and the thriving textile industry was grounded. By September 1896, Dr Acacio Gabriel Viegas accurately diagnosed the illness as bubonic plague, tended patients at great personal peril and initiated a vigorous campaign to clean up slums.[1] In the wake of this debilitating contamination, to deal with this affliction, the Epidemic Diseases Act, 1897 (herein after called Act 3 of 1897) was a quick-thinking legislative response. Later the Act used to be regularly enforced to rein in the outbursts of ailments such as swine flu, dengue, cholera etc. Covid-19 pandemic is as bad or is worse than the illness which hit Mumbai and other parts of the country 123 years ago.
Act 3 of 1897 continues to be applicable in the wake of outbreak of pandemical illnesses like the Covid-19. Close on the heels of the novel covid-19 being proclaimed a pandemic, Government of India invoked this 123-year-old law to limit the spread of the outbreak. Section 2 of the Act empowers state governments/UTs to take special measures and formulate regulations to contain any outbreak if the State Government thinks that other Acts are insufficient for the said purpose. Consequently, all the states and union territories were advised by the Central Government to invoke the provisions of Section 2 of Act 3 of 1897. By an Order[2] issued on 23.03.2020, the Government of Kerala invoking Section 2 of the Act 3 of 1897, read with the provisions of The Disaster Management Act, 2005, notified lockdown in the entire state of Kerala with immediate effect. The order stipulated that any person disobeying any part of the order shall be deemed to have committed an offence under sections 188, 269, 270, 271 of Indian Penal Code.
Act 3 of 1897, at the commencement of the Act applied only to territory of India except [the territories which, immediately before the 1st November 1956, were comprised in Part B States]. Therefore, it did not apply to the territories which, immediately before the 1st November 1956 were part of erstwhile State of Travancore and Cochin. It applied only to Malabar area as defined in the State Re-organisation Act, 1956. As a result, precisely the order could only have applied to the area of erstwhile Malabar inasmuch as State of Travancore and Cochin was a Part B State before 1st November 1956. In other words, provisions of Act 3 of 1897 had no application to the former Travancore and Cochin area since on the date of issuance of the order i.e. 23.03.2020 that Act had no application to Travancore and Cochin. The order thus suffers from a palpable legal lacuna.
On the 27th of March 2020, Government of Kerala promulgated an Ordinance called "the Kerala Epidemic Diseases Ordinance, 2020." Section 12 (2) of the Kerala Epidemic Diseases Ordinance, 2020, stipulated that from the date of commencement of the Ordinance, the provisions of Act 3 of 1897, shall have no application to the territories comprised in Malabar area as defined in the State Re-organisation Act, 1956 (Central Act 37 of 1956). Every legislation contains a provision inserted by abundant caution to validate the actions taken under repealed enactments similar to Section 6 of the General Clauses Act, 1897. Section 12 (3) of the Kerala Ordinance, 2020 saves anything done or deemed to have been done or any action taken or deemed to have been taken under Act 3 of 1897 shall be deemed to have been done under this Ordinance. So much so the Government of Kerala Order[3] issued on 23.03.2020, was saved in so far as it applied to Malabar area, but not with regard to Travancore and Cochin area in the state since Act 3 of 1897 had no application to that area. The Government of Kerala Order[4] issued on 23.03.2020 had no legal footing in Travancore and Cochin area since it had no application there and no new order is seen issued under the new Kerala ordinance. It is an apparent legal misstep possibly due to the want of watchful legal scrutiny.
Section 2A of Act 3 of 1897empowers the Central Government to take measures and prescribe regulations for the inspection of any ship or vessel leaving or arriving at any port in [the territories to which the Act extended] and for such detention thereof, or of any person intending to sail therein, or arriving thereby, as may be necessary. Necessary implication of Section 12 (2) of the Kerala Epidemic Diseases Ordinance, 2020 is that it attempts to take away the powers of the Central Government to take measures and prescribe regulations under Section 2A of Act 3 of 1897.
The Government of India, on the 22nd of April 2020, promulgated an ordinance called the 'Epidemic Diseases (Amendment) Ordinance, 2020' amending the Epidemic Diseases Act 1897. In sub-section (2) of Section 1 of the Epidemic Diseases Act, 1897, the words "except the territories which, immediately before the 1st November 1956, were comprised in Part B States" was omitted by the amending Ordinance. The resultant position is that Act 3 of 1897 would apply not just to Malabar area but to Travancore and Cochin area as well. Nonetheless as per Section 12 (2) of the Kerala Epidemic Diseases Ordinance, 2020, from the date of commencement of the Ordinance, the provisions of Act 3 of 1897 is to have no application to the territories comprised in Malabar area as defined in the State Re-organisation Act, 1956 (Central Act 37 of 1956). The State is now faced with a piquant situation whereby two enactments are now currently in the Statute Books; one a Central Law and another a State Law and a careful examination of the provisions of these ordinances indicate that there are glaring contradictions and inconsistencies.
According to Section 3, of Act 3 of 1897, any person who disobeys an order or regulation made by the Government [ State Government] under the Act, shall be punished in accordance with Section 188 of the Indian Penal Code, 1860 (IPC). Disobedience of an order passed by a public servant and "if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury", entails in simple imprisonment which may extend up to a month and/or a fine of up to Rs. 200. However, if this disobedience "causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray", it shall be punishable with imprisonment extending up to six months and/or fine up to Rs. 1,000. Moreover, under Section 188, IPC, violation coupled with knowledge of the order is sufficient to attract penal liability and an intention to cause harm is not relevant. There is an interdiction contained in Section 195 of the Cr.P.C, against taking cognisance of an offence under Section 188 IPC, except on a complaint filed by the public officer concerned. On the contrary under Section 5 of the Kerala Epidemic Diseases Ordinance, 2020 any person/institution/company contravenes or disobeys any such regulation or order made under the Ordinance or obstructs any officer empowered under this Ordinance, shall on conviction be punishable with imprisonment for a term which may extend to two years or with fine which may extend to ten thousand rupees or with both. Notwithstanding anything contained in the Cr.P.C all offences under the Ordinance are made cognizable and bailable. Resultantly the embargo under Section 195 of the Cr.P.C is given a go by and therefore it prescribes a different procedure. Section 3 of Act 3 of 1897 deals with punishment for disobedience an order or regulation made by the Government under the Act, viz. the State Government. Section 5 of the Kerala Epidemic Diseases Ordinance, 2020, deals with punishments for contravention or disobedience any such regulation or order made under the Ordinance. These two enactments visualise two different punishments and two different procedures for the same offence. Added to this the Kerala Epidemic Diseases Ordinance, 2020 stipulates that the provisions Act 3 of 1897 would have no application to the State of Kerala.
Under Article 246(2) of the Constitution of India, notwithstanding anything contained in clause (3) of Article 246, Parliament, and, subject to clause (1) of Article 246 the legislature of any State also have power to make laws with respect to any of the matters enumerated in List III of the Seventh Schedule of the Constitution, referred to as the concurrent list. Subject to clauses (1) and (2) of Article 246, the legislature of the State has exclusive powers to make laws for such State or any part thereof with respect to any of the matters enumerated in List II of the Seventh Schedule of the Constitution of India. Under Article 254(1) of the Constitution of India in the event of repugnancy between the law made by the legislature of the State and law made by the Parliament with respect to any of the matters enumerated in the concurrent list III, the law made by the Parliament would prevail. However, if the law made by the legislature of the State receives the assent of the President, such law will prevail in the State, notwithstanding the fact that there is an earlier law passed by the Parliament. In the case of promulgation of an ordinance, when the Legislative Assembly is not in session, prior instruction of the President is imperative as envisaged in Article 213 of the Constitution. Again, if a law is enacted by the Parliament pursuant such assent of the President, or prior instruction of the President as the case may be, the latter law made by the Parliament would prevail.
Entry 29 in List III (Concurrent List) of the Seventh Schedule of the Constitution of India deals with Prevention or the extension from one State to another of infectious or contagious diseases or pests affecting men, animals or plants. Both Act 3 of 1897 and the Kerala Epidemic Diseases Ordinance, 2020 deal with Epidemic Diseases such as Covid-19. This virus was detected first in Wuhan, China and has infected populations in the entire world. Therefore, any legislative measure aimed at the prevention or the extension of this pandemic is one coming within the ambit of Entry 29 in List III (Concurrent List) by which both parliament and State legislatures could enact laws.
The list system for distribution of legislative powers between Central and Provincial Legislature was first introduced in the Government of India Act of 1919. Observations contained in the report of the Joint Parliamentary Committee on Indian Constitutional Reforms, suggests that there are certain matters which cannot be allocated exclusively either to the Central or to a Provincial legislature. One such instance was the prevention and control of epidemic diseases. This was carried over with elaboration in the Government of India Act of 1935 and retained in the Constitution of India.[5] It is apposite to refer to the Report of the Joint Parliamentary Committee on the Indian Constitutional Reforms:[6]
"Experience has shown, both in India and elsewhere, that there are certain matters which cannot be allocated exclusively either to a Central or to a Provincial Legislature, and for which, though it is often desirable that provincial legislation should make provision, it is equally necessary that the Central Legislature should also have a legislative jurisdiction, to enable it in some cases to secure uniformity in the main principles of law throughout the country, in others to guide and encourage provincial effort, and in others again to provide remedies for mischiefs arising in the provincial sphere but extending or liable to extend beyond the boundaries of a single Province. Instances of the first are provided by the subject matter of the great Indian Codes, of the second by such matters as labour legislation, and of the third by legislation for the prevention and control of epidemic disease. It would in our view be disastrous if the uniformity of law which the Indian Codes provide were destroyed or whittled away by the uncoordinated action of Provincial Legislatures."
Therefore, the Government of India Act of 1935, the legislative experience in British India and the Constitution favours uniformity of law especially with regard to legislation for the prevention and control of epidemic diseases because these sicknesses come crossing international borders and spread throughout the country. Supreme Court in Kulwant Kaur and Ors. vs. Gurdial Singh Mann[7] observed that uniformity of law, being the basic characteristics of Indian jurisprudence cannot be termed to be at sufferance by reason of a State Legislation which runs counter to the Central Legislation. It is not necessary that one legislation should be on the positive side whereas the other one in the negative: Such a stringent requirement is not the requirement in order to bring home the issue of repugnancy, but all the same it might result when both the legislations cover the same field. If a later statute again describes an offence created by a previous one, and imposes a different punishment, or varies the procedure, the earlier statute is repealed by the later statute.[8] In Zaverbhai Amaidas v. The State of Bombay[9] Constitution Bench of the Hon'ble Court observed:
"It is true, as already pointed out, that on a question under Article 254(1) whether an Act of Parliament prevails against a law of the State, no question of repeal arises; but the principle on which the rule of implied repeal rests, namely, that if the subject-matter of the later legislation is identical with that of the earlier, so that they cannot both stand together; then the earlier is repealed by the later enactment, will be equally applicable to a question under Article 254(2) whether the further legislation by Parliament is in respect of the same matter as that of the State law. We must accordingly hold that section 2 of Bombay Act NO. XXXVI of 1947 cannot prevail as against section 7 of the Essential Supplies (Temporary Powers) Act No.XXIV of 1946 as amended by Act No. LII of 1950." (vide page 809)
The Kerala Epidemic Diseases Ordinance, 2020 and Act 3 of 1897 prescribe two different punishments and two different procedures for the same offence. If a later statute again describes an offence created by a previous one, and imposes a different punishment, or varies the procedure, the earlier statute is repealed by the later statute.[10] Therefore two different punishments and two different procedures for the same offence leads to an inference that the State ordinance is repugnant to the provisions of Act 3 of 1897.
In State of Kerala and Ors. vs. Mar Appraem Kuri Company Ltd. and Ors[11] it has been held by the Supreme Court that incompatibility or repugnancy would be apparent when the effect of the operation is visualised by comparative study. Repugnancy arises when two enactments both within the competence of the two Legislatures collide and when the Constitution expressly or by necessary implication provides that the enactment of one Legislature has superiority over the other then to the extent of the repugnancy the one supersedes the other. But two enactments may be repugnant to each other even though obedience to each of them is possible without disobeying the other. [12] The test of two legislations containing contradictory provisions is not, however, the only criterion of repugnancy, for if a competent legislature with a superior efficacy expressly or impliedly evinces by its legislation an intention to cover the whole field, the enactments of the other legislature whether passed before or after would be overborne on the ground of repugnance.[13] When such is the position, the inconsistency is demonstrated not by a detailed comparison of provisions of the two statutes but by the mere existence of the two pieces of legislation. The identity of the field may relate to the pith and substance of the subject-matter and also the period of its operation. When both coincide, the repugnancy is complete and the whole of the State Act becomes void.[14]
There can be no doubt that several provisions of the Kerala Epidemic Diseases Ordinance, 2020 is repugnant Act 3 of 1897. Both the enactments occupy the same field. The resultant position is that the Central Act 3 of 1897 still holds the field consequent upon the promulgation of the 'Epidemic Diseases (Amendment) Ordinance, 2020' amending the Epidemic Diseases Act 1897 and making it applicable to the entire Country. Resultantly Government of Kerala ordinance 2020, due to repugnancy with the provisions of Act 3 of 1987 and for want of prior assent of the President of India as envisaged in Article 213 of the Constitution of India, is void and inoperative to the extent of repugnancy. These matters require the urgent attention of the State Government since in this time of Covid-19 we face the gravest of threats.
State Legislatures exclusive power to legislate on matters relating to Health is enumerated in Entry 6, in List II of the Seventh Schedule, dealing with Public health and sanitation; hospitals and dispensaries. Under this entry State alone has the competence to enact law with provisions on the quarantining and the sequencing required for dissemination of drugs/vaccines, and the quarantine measures and other preventive steps that need to be taken. There is an urgent need for a law addressing the fundamental principles of human rights that need to be observed during the implementation of emergency measures to combat illness, including police powers. A proposed legislation emphasizing duties of the government officials in preventing and controlling the illness, plainly specifying the rights of the citizens during the event of a substantial virus occurrence, is the need of the day. Ideally, contemporary legislation should clearly provide a comprehensive measure empowering the state to curtail or restrict citizens' rights to liberty, privacy, movement, and property. This would be the best legislative practice than to contravene the constitutional contours of legislation. Even now ideally State could pass an ordinance, under Entry 6, in List II of the Seventh Schedule, when potentially risky influx of expatriate Keralites coming back in droves to their native land from Gulf Countries, is on the anvil.
Views Are Personal Only
(Author is Former Law Secretary Government of Kerala, Former Professor National Judicial Academy and Retired District and Sessions Judge)
[1] https://www.livemint.com/mint-lounge/features/when-the-1897-bubonic-plague-ravaged-india-11587876174403.html
[2] G.O.(Ms) No.49/2020/GAD dated 23.03.2020
[3] G.O.(Ms) No.49/2020/GAD dated 23.03.2020
[4] G.O.(Ms) No.49/2020/GAD dated 23.03.2020
[5] Report of the Joint Parliamentary Committee on Indian Constitutional Reforms, (1933-34), Vol. I, para 51
[6] Report of the Joint Parliamentary Committee on Indian Constitutional Reforms, (1933-34), Vol. I, para 51
[7] AIR 2001 SC 1273: (2001)4SCC262
[8] Kulwant Kaur and Ors. vs. Gurdial Singh Mann AIR 2001 SC 1273: (2001)4SCC262
[10] Michell v. Brown (1 El. and El. 267, 274), per Lord Campbell Quoted in Zaverbhai Amaidas vs. The State of Bombay AIR1954SC752: [1955] 1 SCR 799
[11] AIR 2012 SC 2375
[12] Tika Ramji and Ors. etc. v. The State of Uttar Pradesh: [1956] 1 SCR 393
[13] Ibid
[14] Deep Chand vs. The State of Uttar Pradesh and Ors AIR 1959 SC 648
A Response To The Above Article- By V.K.Babu Prakash Former Legislature Secretary & Former District Judge
Epidemic Diseases Act 1897 is a pristine British Legislation. By virtue of Article 372 of the Constitution, the Act is continued and adapted in India without repeal. It is rightly pointed out by the author that as per Section 1(2) of Act 3 of 1897, the Act extends to the whole of India except the territories which, immediately before the 1st November 1956, were comprised in Part B States. It means ,the Act was not applicable to Cochin and Travancore as those were Part B States before the State reorganisation Act 1956. However, recently on 22-4-2020, the Central Government promulgated an Ordinance called the Epidemic Diseases ( Amendment) Ordinance 2020, amending the Epidemic Diseases Act 1897 ( Act 3 of 1897). As per the amendment to Section 1(2) of Act 3 of 1897, the word except the territories which immediately before 1st November 1956 were comprised in Part B States are omitted. Thus, Act 3 of 1897 is made applicable to the whole of Kerala State. Author says, when Act 3 of 1897 is made applicable in Kerala, the Kerala Government on 27-3-2020 promulgated an Ordinance called the Kerala Epidemic Diseases Ordinance 2020 making its provisions applicable to whole of Kerala State overstepping and transgressing the provisions of Act 3 of 1897.
One of the grounds pointed out by the author is that Section 2 of Act 3 of 1897 empowers State Governments and Union territories to take special measures and formulations regulating to contain any outbreak of epidemic if the State government thinks that other Acts are insufficient for the purpose. But Section 2 of Act 3 of 1897 carefully. Section 2 categorically states as follows, '' When at any time the State government is satisfied that the State or any part of thereof is visited by or threatened with an outbreak of any dangerous epidemic disease, the State government if it thinks that the ordinary provisions of the law for the time being in force are insufficient for the purpose, may take or require such measures and prescribe such temporary regulations to be observed by public etc....'' Provisions of Act 3 of 1897were not applicable to Cochin and Travancore as those were Part B States. The provisions were made applicable only on 22-4-2020 by the amending Ordinance of Central government. Till then the Cochin and Travancore Epidemic Acts 1072 (ME) were applicable in Kerala. As per Section 2 of Act 3 of 1897, the State government if thinks that ordinary provisions of the law for the time being in force are insufficient, it may take such measures or regulations. That means , the State government is competent to take any measures including the enactment of a new comprehensive law or promulgating a suitable Ordinance to meet the exigency. When the amending Ordinance of the Central government came into force on 22-4-2020, the Kerala had promulgated the Ordinance on 27-3-2020. At the time when the Ordinance was promulgated, the provisions of Act 3 of 1897 were not applicable to Cochin and Travancore.
Now, the next question according to the author is that the Ordinance is promulgated on item 29 of list 3 of the Seventh schedule to the Constitution. It is with respect to prevention of the extension from one State to another of infectious or contagious diseases. It is an item in the concurrent list. In the matter of concurrent list the Parliament and State can legislate on the subject. The only precaution the State has to safeguard in such a legislation is that there must not be conflict or repugnancy with the Parliament legislation as contemplated under Article 254(1) of the Constitution. It is not correct that the Ordinance is promulgated on item 29 of list 3. The explanatory note forwarded to the Governor along with the Ordinance makes it clear that the Ordinance is with respect to item number 6 in list 2 which is State list. It is with respect to public health and sanitation, hospitals and dispensaries. The State of Kerala has got competency to promulgate an Ordinance on item 6, which is exclusive within the domain of the State. Public health and sanitation is a wide topic under which any measure can be taken by the government including a comprehensive legislation in the form of a self-contained law, subordinate legislation like rules, regulations and SROs. In list 3 item 29, the Central government can pass legislation for the purpose of preventing the extension or spread of an epidemic from one State to another. In list 2 item 6 the State can take appropriate measure to prevent and contain the extension or spread of the epidemic within the State. The legislative area and subject are different and distinct.
If such a law is enacted by the State within the State list subject, the question of repugnancy does not arise. The Principle of Pith and Substance is not applicable in such a case. Legislative competency is the core of the issue to be decided in regard to repugnancy question. Now, it may be pointed out that the title of the Ordinance is named as The Kerala Epidemic Diseases Ordinance so as to take in item 29 of concurrent list. It is not correct. Nomenclature is not the criteria to look upon repugnancy question. The Ordinance is followed by regulations dated 29-3-2020. The regulations are measures taken to prevent and contain the epidemic spread in the State. There are as many as 8 items of measures like testing, quarantine, social distancing, lock down etc prescribed as preventive measures under the Ordinance and its regulations. There are as many as 9 special measures to be taken by the District Collectors for enforcing the measures mentioned above. The regulations are in tune with the purpose and substance of the Ordinance with a view to meeting the public health and sanitation issues as contained in item 6 of list 2 of the seventh schedule to the Constitution. The State has exclusive competency to promulgate an Ordinance on the subject. The Ordinance promulgated is a self conatined law. Even if it contains some provisions which may appear to be repugnant with some of the provisions of Act 3 of 1897, it is not repugnant as both laws deal with different subjects differently. The Central Act is to deal with the extension and spread of epidemic from one State to another, whereas, the Kerala epidemic diseases Ordinance is to deal with the public health and sanitation issues and the measures to be taken to prevent and contain the spread of the epidemic within the State.
The Supreme Court in State of Uttar Pradesh VS Synthetics reported in 1991 (4) SCC page 139 in paragraphs 18 and 19 has held as follows, '' The test of pith and substance has been applied to determine whether the State law has substantially transgressed on the field occupied by the law of Parliament. There is no repugnance when the encroachment is not substantial or the subject matter of the legislation is not the same.''
The Supreme Court in AIR 1982 SC in page 697 held further that there is no question of applying Article 254 unless the State law, in its pith and substance is a law relating to the concurrent list. If it is covered by an entry in the State list and only touches the concurrent list incidentally, there is no application of Article 254 and no repugnancy at all. The same view was reiterated in AIR 1985 SC page 1394 as well.
In AIR 1975 SC page 898 the Supreme Court held, if the two statutes occupy the same field, create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field.
Section 5 of the Kerala Epidemic Disease Ordinance prescribes punishment for the violation of the regulations which has nothing to do with the punishment prescribed in Section 3 of Act 3 of 1897. The offences prescribed in the Kerala Ordinance and its regulations are different and distinct.
In view of the discussion held above, the Kerala Epidemic Disease Ordinance 2020 promulgated by the Governor does not suffer from any repugnancy with the Epidemic Diseases Act 1897. Both laws occupy different subjects and the State has exclusive competency to promulgate the Ordinance with respect to the subject coming in State list.
Views are personal
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