"The Pandemic" - Effect On Part III Of Constitution Of India "A Citizen's View"

The global spread and social mayhem caused by the 'COVID-19' Virus, being a subset of the viruses known in medical circles as belonging to the family of 'Coronovirus' has shaken the world and its global citizenry and has heralded us into situations rarely witnessed in the past. The COVID-19 is now classified as a Pandemic^[1] by the WHO^[2].

While there have been noted instances of virulent and destructive diseases, such as the Bubonic plague of 1903, the Spanish Flu of 1918 and the SARS virus of 2002, none have had such a chilling effect on the Global Economy, and none of them, quite certainly had such a vast area of spread in such a short period of time. Importantly, none of them have led to a Global shut down of national economies and created a fear psychosis of such large magnitudes, throughout the world, in a time span of about 6-8 weeks.

Governments world over have taken executive and administrative action. In parts of the world, imposisition of a complete shut down, on what Governments call as 'non-essential movement', in an aim to to reduce personal contact, such as stopping movement both in and out of affected 'hotspots', stopping local public transport, shutting schools, staggering working hours, strictly limiting movement out of homes, and prohibiting cross-border movement across states.^[3]

This has naturally led to many quarters examining these restrictions through a judicial lens. Questions have arisen, globally^[4] and in our country^[5], about the implication of the pandemic vis a vis the measures taken under the Epidemic Diseases Act, 1897 (hereinafter the 'ED Act') and the Disaster Management Act, 2005 (hereinafter the 'DM Act'), whether they meet the tests laid down in the Constitution of India for restricting various Civil Liberties. Questions have also arisen, why the Central Government has not declared an Emergency as provided under Part XVIII of the Constitution of India (given the grave and unforeseen damage of the current Pandemic), but has seemingly taken measures similar to those taken in a national emergency.

This Article is a short exposition of the Law on the abovementioned areas and is an attempt to understand the multi-level response of the Government and address some of the legal conundrums thrown up by the present situation.

Part 2 – Emergency Provisions under part XVIII of the Constitution of India:

Broadly, three kinds of 'Emergency' situations have been envisioned under the Constitutional scheme in Part XVIII of the Constitution of India:

A. Emergency arising from a threat to the Security of India (Article 352)

B. Emergency due to the breakdown of Constitutional machinery in the State (Article 356)

C. Financial Emergency (Article 360)

A Financial Emergency is beyond the scope of this discussion and is hence excluded. Articles 352 and 356, however, are pointers of interest which call for further examination.

On Article 352:

Prior to the 44^th Amendment of the Constitution, which was carried out in the year 1978, Article 352 of the Constitution of India permitted the declaration of an emergency on either of the three grounds of:

1. War
2. External Aggression
3. Internal Disturbance

Of particular interest is the third criterion, - 'internal disturbance'. Admittedly a wide expression, similar provisions, occur in the Constitutions of other countries. Article 16 of the Federal Constitution of Switzerland uses the expression 'internal disorder'. The Constitutions of the United States of America and Australia use the expression 'domestic violence'^[6].

Keeping in mind their recent bitter experience in the wake of the insidious emergency declared in the year 1970s, by invoking the provision of Article 352, on the ground of 'Internal Disturbance', the newly elected Government, in India, went about making sweeping amendments to the Constitution of India through the 44^th Amendment.

One such change was to Article 352, whereby 'internal disturbance' was substituted with the words 'armed rebellion', in order to specify and demarcate the extent of the power and to ensure that arbitrary and whimsical declarations of an Emergency are largely curtailed. Of saving grace to another Article in the same Chapter, was the amendment to Article 359, where the Government clarified, that the right to move a Court for the enforcement of the twin human rights under Article 20 and 21 does not stand suspended, even during an Emergency. This effectively over-ruled the judgement of the Hon'ble Supreme Court of India rendered in the case of ADM Jabalpur^[7].

In hindsight, such a change to the nature of Article 352 appears to have curtailed the ability of the State to act directly through the Constitutional Framework to remedy a situation such as the COVID pandemic. The Sarkaria Commission, set up in the year 1983 to study and suggest improvements in the Centre-State relationship, had an occasion to study the contours of Article 352. In dealing with the concept of 'internal disturbance' and the amendment thereof to the words 'armed rebellion', the Commission opined, that perhaps, all was not well with the new change. In an illuminating passage, the Committee observed as follows:

'The scope of the term 'internal disturbance' is wider than 'domestic violence'. It conveys the sense of 'domestic chaos', which takes the colour of a security threat from its associate expression, 'external aggression'. Such a chaos could be due to various causes. Large-scale public disorder which throws out of gear the even tempo of administration and endangers the security of the State, is ordinarily, one such cause. Such an internal disturbance is normally man-made. But it can be Nature-made, also. Natural calamities of unprecedented magnitude, such as flood, cyclone, earth-quake, epidemic, etc. may paralyse the government of the State and put its security in jeopardy.'

(Emphasis supplied)

Therefore, it appears that the word 'internal disturbance' had been knowingly left open ended by the framers of the Constitution to ensure that it covers within its sweep, various disturbances of varying degrees and scope, including, both man made and natural disasters, as also epidemics. Due to the fear of possible misuse (which the Supreme Court has repeatedly held would not be a ground to strike down a law), the Government of the day, curtailed its own powers in an Emergency situation, which curtailment has come to haunt us today.

The breadth of the powers of Article 352, as it stands today, do not allow for declaring the COVID pandemic an 'Emergency' and this is the reason that the Central Government could not have invoked it. There is in this country today, no war, no external aggression or armed rebellion.

On Article 355

While the words 'internal disturbance' continues to form a part of Article 355 of the Constitution of India^[8], the said Article, as clarified by the Hon'ble Supreme Court of India in the case of S.R. Bommai vs. Union of India^[9], is not an independent source of power allowing the Centre to interfere with the functioning of a State Government, but is in the nature of justification for measures to be adopted under Article 356 and 357 of the Constitution of India.

On Article 356:

Article 356 provides for the imposition of President' Rule in a State or in various States, if the administration of the State, in the opinion of the Governor of such State, cannot be carried out as per the Constitution^[10]. The Governors decision on the matter, can be made even against the aid and advice of the Council of Ministers, if these ministers themselves have contributed to such breakdown of Constitutional machinery^[11]. The State Assembly is then either dissolved or kept in a position of 'suspended animation' and the Central Government is empowered to make laws on behalf of the State and exercise the powers under the State List, under the 7^th Schedule of the Constitution.

Naturally, the power to invoke Article 356 on a particular State ought to be used rarely and only in the final instance, and will be subjected, most certainly, to Judicial Review^[12]. Interestingly, the Sarkaria Commission notes in its report, that the 'breakdown' of Constitutional machinery in a State, can include a 'physical breakdown', and states that Article 356 can be imposed –

"Where a natural calamity such as an earthquake, cyclone, epidemic, flood, etc. of unprecedented magnitude and severity, completely paralyses the administration and endangers the security of the State and the State Government is unwilling or unable to exercise its governmental power to relieve it"^[13]

The caveat, however, is that the pandemic, as referred to by the Commission, must be of such magnitude that the State Government is unable or unwilling to exercise its governmental power. This kind of situation has not arisen in our Country. In fact, the critics of various State measures seem to believe that the State has super-imposed itself on its citizenry, with excessive executive action and privacy violations being rampant across States^[14].

It is also worth noting that the power conferred by Article 356 is of exceptional character, and is to be used sparingly, and the power itself is conditional upon material and strong circumstances validating its use.^[15] Naturally, this Article could not have been exercised by the State Government, lest a medical emergency is turned into political turmoil or a legal situation.

The exercise of such a Constitutional declaration for calling an Emergency, takes a further backseat, in view of two legislations specifically enacted by the Government to deal with such calamitous situations, being the DM Act and the ED Act, which legislations are discussed, albeit briefly, hereinbelow:

Part 3: The Epidemic Diseases Act, 1897:

The ED Act, being Act 3 of 1897, came into force w.e.f 4^th February, 1897, with an object 'to provide for better prevention of the spread of Dangerous Epidemic Diseases'. Passed during the onset of the Bubonic Plague in British Bombay, the Act originally contained 4 Sections, before the Central Government passed the Epidemic Diseases (Amendment) Ordinance on 22.4.2020, enlarging the scope of powers of the Central Government and also penalising an 'act of violence' against a 'healthcare service personnel'.

Sec.2 and 2A of the ED Act, which constitute the meat of the enactment, vest powers with the State Government and the Central Government respectively to take special measures and prescribe regulations with respect to 'dangerous epidemic diseases'.

Sec. 2(1)^[16] provides that the State Government may, when threatened with an outbreak of any dangerous epidemic disease, take such measures and, by public notice, prescribe such temporary regulations to be observed by the public or by any person or class of persons as it shall deem necessary to prevent the outbreak of such disease or the spread thereof.

Sec. 2(A)^[17] of the ED Act also grants sweeping powers to the Central Government and empowers it to take 'any measures' and also to prescribe regulations to inspect any vehicle, train, ship, vessel and to detain such vessel or any travellers therein.

This Act necessarily endows the respective Governments with sweeping powers to check, prevent and mitigate the extent of any possible dangerous epidemic disease. While the Act necessarily cannot mandate anything unconstitutional, it can certainly have the effect of curtailing many of these rights, in view of the prevailing health hazard. Despite 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, the ED Act, still holds the field, as the said Bills were never passed.

Part 4: The Disaster Management Act, 2005:

Exercising powers under Entry 29^[18] of the Concurrent list of Schedule 7 of the Constitution of India, the Central Government passed the Disaster Management Act, 2005, with the object of the enactment being 'to provide for the effective management of disasters and for matters connected therewith or incidental thereto'.

The Act defines a 'disaster' at Sec. 2(d).^[19] The Act envisages a three tier Disaster Management structure, with the National, State and District level committees. The Act mandates the Central Government to establish National Disaster Management Authority as a nodal Authority with the Prime Minister of India as its ex-officio Chairperson. The Act obligates the Central Government to take all measures necessary and expedient for the purpose of disaster management including making proper and necessary allocation of funds, laying down guidelines to be followed by the State and, most importantly, at Sec. 35 (1) "the Central Government shall take all such measures as it deems necessary or expedient for the purpose of disaster management."

Sec. 35(1) is also analogous to Sec. 6(i), which empowers the National Committee (whose members are selected by the Central Government) to "take such other measures for the prevention of disaster, or the mitigation, or preparedness and capacity building for dealing with the threatening disaster situation or disaster as it may consider necessary"

Sec. 72 of the DM Act^[20] states that the DM Act shall have an overriding effect over any other Law for the time being in force and Sec. 73^[21] grants immunity to the empowered officers under the Act from legal proceedings for actions deemed to have been carried out in good faith.

Part 5: The Virus, the 'Lockdown' and Fundamental Rights:

The nature of the Chapter on Fundamental Rights, contained in Part III of the Constitution of India has been described and venerated by a barrage of Judgements of the Supreme Court of India, right from the verdict of the Court in A.K. Gopalan^[22] to Puttaswamy^[23]. A watershed moment occurred in Maneka Gandhi's Case^[24] with respect to the dovetailing nature of various fundamental rights, and also in the celebrated dictum in Keshavananda Bharathi^[25]. With such a veritable treasure trove of Judicial opinions dotting the field, suffice it to say that the Constitution itself would be a lifeless charter if the classic civil liberties of the last 5 centuries and the great human rights which were staked at the freedom struggle did not find adumbration and acknowledgement in the Fundamental Rights Chapter.

The judicial rulings that the Fundamental Rights cannot be trampled upon or curtailed, except according to a Just, Fair and Reasonable procedure established by Law, or as per the inherent reasonable restriction which are self-contained as part of a particular Article in Part III, need no reiteration.

It must be kept in mind that the present scenario is not one that has been invoked under Chapter XVIII dealing with the Emergency provisions and has in fact been effectuated by the twin legislations briefly described hereinabove.

Fundamental Rights, themselves, operate and classify themselves into 2 broad categories –

1. A.Rights that are vertical in nature, which deal with the individual's interactions with the State and Administrative bodies within the State, such as Articles 14, 15, 16, 19, 20, 21, etc ; and,

4. B.Rights that are horizontal in nature, which deal with the individual's interactions with his peers and fellow countrymen, such as Articles 17, 23, 24.

The reason, shortly put, to include rights that are innately horizontal, within the Chapter of Fundamental Rights was to ensure that the Constitution is able to realise the aims of the Founders of this Republic to give to its people a Transformative Constitution, that transforms and acts as a catalyst in the process of social integration. There could never be true equality if the practice of untouchability were to continue, or if wells were separate for separate citizens, etc.

The Rights, broadly classified, reclassify themselves also based on varying Civil Liberties, such as:

1. A.Right to equality {Art.14 to 16 & 18}
2. B.Right to certain specifically enumerated freedoms {Art.19 to 22}
3. C.Right against exploitation {Art.23 & 24}
4. D.Right to freedom of religion, {Art.25 to 28}
5. E.Cultural and educational right {Art.29 &30}
6. F.Right to constitutional remedy {Art.32}
7. G.The Abolition of Untouchability {Art. 17}

The Curfew:

The beginning, and perhaps the most substantial challenge to the Lockdown from the perspective of Fundamental Rights has been levied by those who believe that the 'Lockdown' imposed by the Central Government under a notification dated 24.3.2020^[26] has no constitutional protection and it affected the citizen's Right to Movement under Article 19(1)(d) and the Right to freely practice one's business or trade under Article 19(1)(g).

The notification was issued by the Central Government under the DM Act, after classifying the COVID outbreak to be a 'disaster' as provided for under the Act. The restrictions were fundamentally on the movement of people, except those who had been exempted under the notification itself, such as healthcare workers, doctors, policeman and other critical Government servants. Moreover, the Industries that were shut down excluded those involved in manufacturing essential commodities.

Even on a cursory reading, the notification imposing the 'curfew' appears to be in the nature of a Reasonable Restriction as provided for under Articles 19(5)^[27] and 19(6)^[28] itself, having been made, quite obviously, to check the rampant spread of a virulent pandemic and to safeguard the public. The 'reasonableness' of these restrictions, have not been judicially tested as on date of writing this article, but they appear to be, at first blush, a restriction borne out of the interest in the general public, keeping in line with the directives of the World health Organisation with respect to social distancing norms^[29]. Social distancing norms and a ban on public gatherings have become a global norm, with the United Kingdom recently publishing an advisory against social gatherings on 29.3.2020.^[30]

States invoking the ED Act:

Several States, have invoked the provisions of the ED Act, and have issued guidelines. For instance guildlines issued by State of Maharashtra ^[31] on 14.3.2020 with respect to preventing mass social gatherings, isolating those showing symptoms of the virus, prohibiting vehicular traffic and movement in COVID 'hotspots', etc.

As part of the aforesaid guidelines, the State Governements have also banned the dissemination of information relating to 'COVID' on social media, without ascertaining the accurate facts from the State Government, and without the prior clearance of the Commissioner of Health Services. This has also come under scrutiny from certain quarters as being a measure violative of the Right to Free Speech and Expression guaranteed under Article 19(1)(a).

Naturally, scandalous and mischievous information, especially during the times of the pandemic, with respect to the number of deaths, the COVID hotspots, etc, if unverified and malicious has the potential to cause large scale disturbances to public order. Therefore, the said restriction is a reasonable restriction.

Curfew under Sec. 144. Cr.P.C:

Apart from the above, State Governments are also invoking the provisions of Sec. 144 of the Cr.P.C. ensure that social distancing norms are strictly followed and have passed innumerable orders throughout the Country. Such orders have not come to be challenged, as the motivating factor to issue them was to ensure social distancing practices.

Right to Privacy Concerns:

Some States such as Karnataka^[32], Delhi^[33] and Maharashtra^[34] have resorted to applying an ink stamp on those who have been quarantined due to worries that they may have contracted COVID and some states have also published the details of those infected with the virus on the internet. Tamil Nadu has organised home-quarantine stamps to be affixed on the doors of certain persons with travel history to Countries or locations which have a high incidence of the disease.^[35] These have raised queries^[36] with regards to whether these measures violate the Right to Privacy as delineated in the Puttaswamy Judgement^[37] of the Hon'ble Supreme Court.

The Right to privacy is not absolute. It owes its foundations in Personal Liberty, and in that great human right of 'Dignity', which resonates in all aspects of life – privacy was acknowledged as a core component, without which the free exercise of any of the fundamental rights would become redundant and hollow. However, the right, like all other rights are subject to reasonable restrictions. Not everybody can be kept informed of a household being under quarantine. The milk vendor, the newspaper delivery person, vegetable sellers, etc, are all persons on the fringes of society and may be unaware of developments in very many households, which they frequent on a daily basis. It would be a catastrophe if these vendors are allowed to enter these homes, or interact with those who are quarantined, during the quarantine period. It is to safeguard the larger social interest that these liberties have taken a temporary backseat.

Fundamental Rights not suspended:

The enforcement of Fundamental Rights themselves, have not been suspended, as in case of an Emergency^[38]. Therefore, the road not taken under Part XVIII of the Constitution ensures that the Fundamental Rights chapter remains justiciable throughout the 'Lockdown' period. Keeping in mind the clear dictum of the Hon'ble Supreme Court of India in Anita Kushwaha's Case^[39] with regards to the importance of the Right to Access Justice, various Courts, including the Supreme Court of India has been working and hearing matters through E-Conferencing, in furtherance of the Circular dated 23.3.2020. The Hon'ble Apex Court, in the case of A.A.Srivastava vs Union of India^[40], passed orders monitoring the state of migrant workers during the COVID Pandemic, through an order dated 31.3.2020. The Hon'ble High Court of Madras has been working, hearing urgent matters and passing orders throughout the 'Lockdown' period. Guidelines for E-filing have been notified by the Hon'ble Court of Madras.^[41]

Of all the Rights in the great Pantheon of Civil Liberties, perhaps the one most important, is the Right acknowledged by Article 21 – The Right to Life. It is only when this inherent right still exists, do we have the vitality and the physical presence to enjoy the rest of the Constitution. A situation, as thrown up by the present is a rarity and perhaps rightly so – The anxiety, the fear psychosis and the legitimate worries of migrant workers and wage earners has never been seen before, at least over the last 6 or 7 decades. What must be remembered however, is that every right in Part III of the Constitution is subordinate to the Right to Life, which the most vital of them all. It is this right that is challenged by the COVID-19 Virus, and it is to protect this Right, that various measures have been taken by the Governments of the World.

While some Vertical rights have indeed been curtailed, all Horizontal rights in Part III are still in full flow. Dignity, Non-discrimination, Prohibition of untouchability, access to material and societal resources equally, etc are all being followed, more so in these times, than ever before.

This does not mean that any or all prohibitions passed by the State under the ED Act and DM Act are automatically constitutional. The Test for evaluating conflicting Fundamental Rights and to ascertain the degree of reasonableness of a restriction will be to follow the Constitutional barometer of Proportionality - that requires that all State actions meet the quadruple tests of legality, rationality, necessity, and strict proportionality. No action must be warranted, beyond whatever degree that is strictly necessary to ensure public order and health and any action over and above the minimum threshold level of restriction will fall out to be declared unconstitutional^[42].

In light of the overarching public and medical threat, and in order to sustain the vital Force of Article 21, which Article is the single most important jewel in the Constitutional Scheme, certain liberties will have to remain dormant, albeit briefly. That is the trade-off we make, as a society and as a nation to ensure all of us are alive when this great medical emergency passes. It is also a clarion call, to remember the last few words of Babasaheb Ambedkar, in the last speech that great man delivered in the Constituent Assembly on 25.11.1949 – the call for nationhood – the call for Fraternity, and a common brotherhood among all Indians during such times – for, in Ambedkar's shining words – " Without fraternity, equality and liberty will be no deeper than coats of paint"