In the month of December 2019, World Health Organization (WHO) was first informed of a cluster of cases of pneumonia caused by corona virus (COVID-19) in Wuhan City, China, which has now caused an outbreak of respiratory illness across 213 countries. The first case of the pandemic in India was reported on 30th January 2020.
Legal framework:
In order to contain the spread of COVID-19, the Central Government issued Orders prescribing lockdown in the country on 24.03.2020. The Orders were issued in terms of the provisions of the National Disaster Management Act 2005 (the DM Act) in tandem with the Epidemic Diseases Act of 1897 (the ED Act). In exercise of the powers under section 6(2)(i) of the DM Act, the Central Government issued the Order dated 24.03.2020, directing the Ministries/ Departments of Government of India, and the State/Union Territory Governments to take effective measures to prevent the spread of COVID-19 in the country. In furtherance of the same, Ministry of Home Affairs (MHA) issued an Order dated 24.03.2020 under Section 10(2)(l) of the DM Act, directing the Ministries/ Departments of Government of India and State/Union Territory Governments to take effective measures for ensuring social distancing so as to prevent the spread of COVID-19 in the country. The Order was to remain in force for a period of 21 days only; however, it was further extended till 3rd May 2020 and again for two weeks, till 17th May 2020.
As per the said Orders, Offices of the Government of India, Offices of the State/ Union Territory Governments, their Autonomous Bodies, Corporations, etc. were to remain closed. The Commercial & private establishments and Industrial Establishments were also directed to be closed down. However, grocery Shops, dairy and milk booths, Banks, Print and electronic media, Telecommunications and pharmaceuticals stores were exempted.
It is important to note that the DM Act provides for “the effective management of disasters. The word ‘disaster’ has been defined under section 2(d) of the Act, as a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man-made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to property or environment of the affected area. For management of such disaster, a National Disaster Management Authority (NDMA) has been established under the Chairmanship of the Prime Minister. NDMA has been given the responsibility for laying down the policies, plans and guidelines for disaster management for ensuring timely and effective response to disaster. NDMA also has powers to recommend relief in repayment of loans or for grant of fresh loans to the persons
affected by disaster on such concessional terms as may be appropriate. In a similar manner, every State Government has been authorized to establish a State Disaster Management Authority (SDMA) for the State, under section 14 of the Act.
Concerns:
Immediately after the Order of lockdown was issued, the government’s effort went into disarray as thousands of migrant labourers started flouting lockdown order to head to their homes, fearing starvation following the imposition of restrictions on their occupation and movements. The migrant workers, particularly from the States of Gujrat, Rajasthan, Maharashtra, Chennai, Andhra Pradesh Telangana and Delhi, started moving on foot to reach their home states.
Since, the Commercial & Industrial Establishments were directed to be closed by the Central Government, the fear of losing jobs and salary loomed large on the employees, who were forced to sit at home. The companies are finding it difficult to pay their employees, as their activities have been stopped leading to a picture of uncertainty.
Even Entrepreneurs, Professionals, Micro & Small Companies, shop owners & vendors, which are the backbone of the economy, are in fragile state and dependent upon their savings/profits to survive as the sources of their income have shrank due to curtailment of their right to occupation, profession and business. For them, pursuing their job is not only necessary for their survival or individual freedom but also for leading a dignified life, thus an essential service.
To alley the fear, the Ministry of Labour and Employment issued advisory to private companies and entities to desist from job cuts or pay cuts during the period. The Department of Expenditure, Ministry of Finance also announced that all contractual workers in departments would receive their full pay during the lockdown period.
Issues:
Interestingly, Public health & sanitation, hospitals and dispensaries are part of State List in Schedule Seven to the Constitution of India, which empowers the State Governments to enact laws with the subjects as per their will. The DM Act provides for measures to be taken in the affected areas only, where the disaster has spread or likely to spread. In contrast, the Central Government resorted to complete lockdown, ignoring the plight of common man.
The objective of the ED Act, a British-era law, is to provide for the better prevention of the spread of Dangerous Epidemic Diseases. It gives powers to the Central Government to take measures and prescribe regulations, when India or any part thereof is threatened with an outbreak of any dangerous epidemic disease. Under the provisions of this Act, several
states have already framed rules and issued guidelines to be followed by th residents, doctors and authorities.
Given the framework of the DM Act & ED Acts, it is clear that there are no provisions in the two Acts to curtail the movement of the people, except in the containment & hotspot zones, and to issue directions to the companies with regard to payment of wages, thus it’s a hollow statement.
To deal with the situation when the employees are lay-off during natural calamity, provisions have been introduced in the Industrial Disputes Act 1948 (ID Act), a special law, for payment of compensation in the event of a lay-off. Section 2 (kkk) defines the term “Lay off”. As per the definition, if an employer is unable to provide employment to an employee due to a natural calamity or for any other connected reason, then the same would fall within the definition of “Lay off”. Thus, the directions issued by the Central Government can at best be treated as advisory and not mandatory. Since, citizens have been forced by the state to stop their work, which is directly connected to their livelihood; they are under tremendous pressure to borrow money to feed their families and pay rent for their accommodation.
The Government should have made arrangements for shelters, food and other items for people who were affected by the order of lockdown.
The right to livelihood is comprehended in the right guaranteed by Article 21 of the Constitution that no person shall be deprived of his life except according to procedure established by law. The word ‘life’ as employed by Article 21 takes in its sweep not only the concept of mere physical existence but also all finer values of life including the right to work and right to livelihood. The guarantee of personal liberty is contained in Article 21. Likewise, the right to reside and settle in any part of the territory of India is guaranteed by Article 19(1)(e) and the right to carry on any occupation, trade or business which is guaranteed by Article 19 (1)(g).
Way back in 1985, the Supreme Court in Olga Tellis v. Bombay Municipal Corporation (1985 SCC (3) 545), popularly known as the “Pavement Dwellers Case” has held that ‘right to livelihood’ was borne out of the ‘right to life’, as no person can live without the means of living, that is, the means of Livelihood. Since then, the scope and ambit of the right to life has been expanded by the constitutional courts.
India is also a party to the International Covenant on Civil and Political Rights (ICCPR) to which it acceded and ratified in July 1979. Article 4 (2) lists seven provisions of the ICCPR from which no derogation is permitted. These are, Article 6 (right to life), Article 7 (prohibition of torture), Article 8 para 1 & 2 (prohibition of slavery and servitude), Article 11 (prohibition of imprisonment for non-fulfillment of contractual obligations), Article 11 (prohibition against retroactive criminal laws and penalties), Article 16 (the right to be recognized as a person before the law), Article 18 (freedom of thought, conscience and religion). Under the
ICCPR it is the obligation of a party-State to bring its laws in conformity with the provisions of the Covenant.
The only provision, which leads to the suspension of Fundamental Rights, has been incorporated under the Constitution of India, during emergency caused by war, external aggression or armed rebellion. The most significant effect of emergency is that the authority of the Centre increases and the Parliament assumes the power to make laws for the entire country or any part thereof, even in respect of subjects mentioned in the State List. Whereas, Fundamental Rights are enshrined in Part III from Article 12 to 35 of the Indian Constitution, which are guaranteed to the citizen of India and no one can encroach upon them and infringe the right of a citizen.
In the case ADM Jabalpur v. Shiv Kant Shukla (1976 AIR 1207), the Supreme Court said that in the view of the presidential order, no person has any locus standi to move any writ petition under article 226 before a high court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or illegal or is vitiated by mala fides factual or legal or is based on extraneous consideration.”
However, the 44th Amendment of the constitution has brought several changes. Under Article 352 of the Constitution of India, “Internal disturbance” has been replaced by “armed rebellion”. Article 19 of the Constitution of India which used to get suspended by the proclamation of emergency will not get suspended if the ground of emergency is only armed rebellion and not war or external aggression. Right to life and personal liberty under Art 20 and 21 of the Constitution of India cannot be suspended during emergency.
Imagine a situation, where a person aggrieved with the acts and omissions of the Executive, is denied access to justice because he will not be allowed to travel to the State Capital to approach the High Court of the State for redressal of his grievances. Even Courts are not functioning at their full strength and lawyers can only have access to Justice via Video Conferencing that too in emergent cases, to be decided by the Courts.
So far as application of DM Act is concerned, it deals with drawing of a National Plan. Section 11 of the DM Act stipulates that the National Plan shall be prepared by the National Executive Committee (NEC) in consultation with the State Governments and expert bodies or organisations. The National Plan shall deal with measures to be taken for the prevention of disasters or for the mitigation of their effects and for preparedness and capacity building to effectively respond to any threatening disaster. There is no provision under the DM Act, which empowers the Government to issue orders suspending economic activities, right to movement, right to shelter or right to employment of the citizen.
Echoing concerns of suspension of human rights in several countries during lockdown, the UN secretary general, António Guterres has warned that coronavirus pandemic must not be used as a pretext for authoritarian states to trample over individual human rights or repress the free flow of information. He said what had started as a public health emergency was rapidly turning into a human rights crisis.
With the COVID-19 health scare not expected to die down any time soon, generating resources (finance and employment) for individuals & business enterprises shall be the next big challenge in the near term. Every day that the relief is not provided would add to the overall delay and further choke our deplorable condition. Besides, guidelines in terms of section 12 of the DM Act, for maintaining minimum standards of relief in relation to shelter, food, drinking water, medical cover and sanitation has not been issued by the NDMA for those infected by the virus and those whose life has been made miserable due to lockdown.
–Mritunjay K. Singh