COVID-19- A PANDEMIC BOUND BY LAW
Varnika Verma, Student, Chanakya Law College, Kumaun University.
“QUOD HOMINIBUS OPUS EST NUNC ATTENTAT SOLIDARIETATEM”
CO stands for CORONA
VI stands for VIRUS
D stands for DISEASE.
The Coronavirus disease is a highly transmittable and pathogenic viral infection caused by severe acute respiratory syndrome Coronavirus-2 (SARS-CoV-2).
The outbreak was initiated from the Hunan seafood market in the City of Wuhan, China and was first reported to the WHO Country Office in China on Dec 31, 2019 and further it was declared a Public Health Emergency of International Concern on Jan 30, 2020.
On Feb 11, 2020, WHO announced a name for the new Coronavirus disease: COVID-19. Soon after on 11th day of March, 2020 WHO declared Covid-19 as PANDEMIC.
On 14th March, 2020, the 2nd populated country of the world with 28 States and 08 Union Territories i.e. INDIA declared this dreadful virus as PANDEMIC.
As the virus transmits from person to person, so to avoid mass gathering, the Central Govt. of India imposed Section 144 of CrPC which says “Power to issue order in urgent cases of nuisance of apprehended danger”, the time limit for it is 02 months but can be extended to 06 months in certain cases. If there is a violation of the Section 144 then there is a penalty for it.
It was considered that Section 144 of CrPC is violative of Article 19(1)(b) of Constitution of India which provides “Right to Assembly” but this is not an absolute right, restrictions can be imposed and under the reasonable ground or restrictions one can be put to limitations.
The imposition of Section 144 was not enough as it only restraints assembly whereas, other things are available in the market.
THE CENTRE AND STATES LATCHED ON TO TWO ENACTMENTS
1. EPIDEMIC DISEASES ACT 1897
This Act came into being after the “Bombay Bubonic Plague Epidemic of 1896”, and Section 02 and 02A of the said Act gives power to the Central and State Govt. to take necessary steps in the epidemic situation to control its outbreak, even if the steps are not mentioned in any law practice or theory in the country as normal provisions of law are not enough in this situation.
The scratchy powers under this Act are expanded by Amending Ordinance of 2020 to add Sections 01A, 02B, AND 03A to protect health workers from acts of violence and expansion of Section 02A to regulate movement of all vehicles and persons.
If there is a violation of the provisions of the Epidemic Diseases Act 1897, than it is punishable under Section 188 of Indian Penal Code, i.e. “Disobedience to order duly promulgated by public servant” which may extend to 01 month of imprisonment or with fine which may extend to Rs. 200 or with both and if such disobedience causes danger to human life, health and safety than it may extend to 06 months of imprisonment.
2. DISASTER MANAGEMENT ACT 2005:
It is a modern legislation which postulates “prevention and mitigation effects of disaster and for undertaking a holistic, coordinated and prompt response to any disaster situation”.
The Ministry of Home Affairs (MHA) invoked lockdown under Section 06(2)(i) of Disaster Management Act 2005.
The MHA published the guidelines using Section 10(2)(1) of Disaster Management Act 1955, on the measures State and Central Govt. must take during the lockdown.
THE QUESTION AROSE: Has Central Government power to pass an order under the Disaster Management Act 2005? Is it constitutionally valid?
YES, as Article 245 of the Constitution of India states that the Parliament or Central Govt. may make laws for whole or any part of the state. Whereas, Article 246 provides for the “Distribution of Legislative Subjects” between the Central and State Govts. It does so by creating three list, enumerated in the Seventh Schedule of the Constitution where the legislative competence to deal with the current pandemic appears to fall under Entry 97 List I.
The public health and sanitation; hospital and dispensaries, is a State Subject under Entry 06 List II.
There is also concurrent power with the Centre and the States in Entry 29 List III for prevention of the extension from one State to another of infectious diseases.
Since, both Central and State Govts. are empowered to legislate on an entry in the Concurrent List, a possible collision or inconsistency between the two legislations cannot be ruled out.
Under Entry 06 List II State Govt. can direct their respective District Magistrates to impose lockdown where only essential supplies are available.
NOW THE QUESTION IS WHAT ARE ESSENTIAL SUPPLIES?
Section 03 of Essential Commodities Act 1955 counts what are essential commodities and what items are to be avoided.
Schedule 01 of Essential Services Act provides a list of services in the category