Of Disasters and Epidemics- The Constitution
(44th Amendment) Act, a Probe into the Wisdom of our Choices
For all
its acclaim and the celebration that surrounds it, the Constitution (44th
Amendment) Act, 1978 may have done us one little disservice, the consequence
of which we may hope never to experience.
I last spoke of the Epidemic Diseases Act,
its inadequacies, inherent vices and our colonial overlords.
So naturally, the prevailing scheme of things took
me to the other statute everyone is talking about i.e. the Disaster Management
Act, 2005 (DMA).
Its invocation was a fancy bit of footwork to say
the least. For starters, the assortment of adversity in Section 2(d), which defines
“disaster” (“a catastrophe, mishap, calamity or grave occurrence”), are more
associated with the physical sciences, viz. geological and metrological occurrences
such as earthquakes, floods, hurricanes and tornadoes. Not so much epidemics, which
are linked to viral or biological phenomena.
Even otherwise, I have little hesitation in proposing
that virulent contagion is not exactly what the lawmakers had in mind when they
were thinking about the construct of the DMA.
In March of 2005, pending enactment of the DMA,
then Home Minister Shivraj Patil,
in a statement before
the Lok Sabha, made clear what was on his mind: “the
Super Cyclone in Orissa in the year 1999, the earthquake in Bhuj
in 2001 and the recent Tsunami.” The tsunami being an obvious reference to the
calamity of December 2004, which had caused extensive damage to life and property
in the southern states and territories of Pondicherry as well as Andaman and Nicobar.
Also telling is his statement in August that same
year, which he made during a short discussion on the issue of “natural calamities”
before the Lok Sabha, where he said:
“…besides cyclone, drought, earthquake, fire, flood
and hailstorm, the definition of natural calamity, as applicable at present, has
been extended to cover landslides, avalanches, cloudburst and pest attacks.”
But beggars can’t be choosers! Following the successive
failure to enact public health laws, recourse to the DMA was among the few options
the Union Executive had. Nonetheless, there is consolation in the school headmistress-like
chastisement of the Ministry of Health & Family Welfare in the ultimate
paragraph of the 102nd Report submitted
to the Lok Sabha on ‘Disaster Preparedness in India’.
The Committee spoke of the “non-chalant attitude”
of that Ministry with regard to the finalization of the Bill for the purpose.
So, ‘uniformity’, provided the initial impulse
and has continued as the underlying justification for the invocation of the DMA.
The order dated March 24, 2020 issued by the Ministry of Home Affairs (MHA), stressed
upon the “need for consistency” while issuing a string of measures and restrictions.
Also, a Press Information
Bureau release had cited “lack of uniformity” in the measures
adopted and implemented by States and Union Territories as the reason behind the
issuance of the directives.
All of a sudden, we had a nationwide ‘lockdown’
of unprecedented and undefined sorts. Isolated at our homes with the “laksman rekha” outside the front
doors, post-haste, many of us engaged in debate. The hypothesis: a transgression
by the Union!
As in our constitutional scheme of things, by virtue
of List II in the Seventh Schedule to the Constitution, subjects such as public
order (Entry 1) and health (Entry 6) are within the exclusive domain of the states.
So, a quarantine in terms of encouraging people to stay home or closing businesses
as a means of “social distancing”, coming from the MHA could at best be advisory
in nature.
Counter theories sought to provide justification
for the broad and expansive nature of the guidelines. Entry 29 (Prevention of
the extension from one State to another of infectious or contagious diseases or
pests affecting men, animals or plants) in the concurrent list drew attention.
One opinion suggested
that the “central government’s power to pass the Mar. 24, 2020 order seems to
be derived from Entry 29 of the concurrent list” and “it seems logical for
the central government to address the concern under Entry 29 in a unified manner,
as opposed to state governments implementing measures not coherent with one another.”
It was further argued that the doctrine of repugnancy in Article 254 of the Constitution
would sufficiently resolve any inconsistency in favour
of the law made by the Union.
But we know that recourse to the doctrine of repugnancy
and the legislative lists may be made in order to resolve conflict inter se laws
“made by the Legislature of a state” and “made by Parliament”. It is not, generally
applied to justify executive directions in isolation.
Also, considering that we are terrified beyond
belief by the Coronavirus, we may never question the broad and expansive guidelines.
But emotive reasons are not a constitutional yardstick for validating executive
decisions.
At any rate, this was not meant to be a critique
of how the Union has functioned in crisis. The exercise is a converse one: is the
Central government vested with powers sufficient to act decisively or as ‘uniformly’
as required in times of extreme exigency?
So, even assuming competence (as we should, always)
to enact all laws, fact is that the MHA had, prior to this pandemic, largely fancied
its role under the DMA as being largely supplementary to that of the states. Kiren Rijuju, then Minister of State
in the MHA, in fact stated before the Lok Sabha as recently
as April 2017, “that the primary responsibility of disaster
management rests with the States, and the Central Government supplements the efforts
of the State Government/ Union Territories.”
And I understand the arguments about the DMA being
a repository of all powers for this purpose. But in effect, Section 6 (which empowers
the National Authority to issue binding directions in the form of guidelines to
state authorities) and Section 62 (which empowers the Centre to issue binding directions
to state governments) are only in line with Article 256 of the Constitution, by
virtue of which the executive power of the Union extends to giving directions to
a state, with the latter being obliged to ensure compliance with the laws made by
Parliament.
A failure to abide by such instructions, in the
current scenario, has resulted in a reminder of sorts. See for instance, the MHA’s plea to the
local administrations requesting them to “strictly implement lockdown measures in
letter and spirit”, issued following instances of deviation from what had been “permitted”
under the Consolidated Guidelines issued by the MHA.
But do think of a scenario where the mere issuance
of guidelines by a Ministry of the Union may not suffice. At least one reputable
individual has likened the
Coronavirus crisis to wartime. And,
the likeness of the current crisis to an exigent circumstance cannot easily be denied.
Naturally, this brings us to the Emergency provisions
in the Constitution. In its original form, Article 352 enabled proclamation of Emergency
where the security of the nation or part thereof “was threatened, whether by ‘war’
or ‘external aggression’ or ‘internal disturbance’.”
In 1978, the Constitution (44th Amendment)
Act (the CA 44) had substituted the last expression with ‘armed rebellion’ i.e.
as part of the exercise of burying the twin-shame that was the Emergency of
1975 itself, as also the pronouncement of the Supreme Court in ADM Jabalpur, where
the Court had held:
“In view of the Presidential order dated 27 June
1975 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 is illegal or is vitiated
by malafides factual or legal or is based on extraneous
consideration.”
Care to believe that the expression, “internal
disturbance” was broad enough to accommodate an exigency akin to epidemic. The Sarkaria Commission, in its Report on
Center State Relations, had
stated that when the framers of the Constitution had used the expression ‘internal
disturbance’, they had “intended to cover not only domestic violence, but something
more” including natural calamity “of unprecedented magnitude, such as flood,
cyclone, earth-quake, epidemic, etc.”
The Commission had felt that such calamities could
also, “paralyse the government of the State and put
its security in jeopardy.” Of course, this is not true of the expression “armed
rebellion”, which is suggestive of a more overt form of aggression that is associated
exclusively with the human race.
Understandably, the basic design underlying the
amendments introduced by the CA 44 was to make practically impossible, the repetition
of a 1975-like situation when Emergency was declared without adequate
cause (as the Shah Commission found) on grounds
of “internal disturbance.”
Thus, in the minds of those vested with the responsibility
of ensuring that such a scenario never repeat itself, alternating the expression
“internal disturbance” with “armed rebellion” may have been appealing. More so,
since the ostensible justification for invoking the Emergency on grounds of “internal
disturbance” were popular movements, (or crisis, if you were Mrs. Gandhi) like the
JP movement.
And since “armed” is one thing the movement was
not, possibly in the minds of those introducing the CA 44, the Emergency was all
the more unjustified. Nonetheless, considering the fact that a host of other steps
were taken by the CA 44 to remove the supposed defects in Article 352 as originally
enacted, the substitution of “internal disturbance” with “armed rebellion” may have
been unnecessarily overzealous, even damaging.
At any rate, it is difficult to see how the Emergency
(or its excesses) could have been kosher had the same been preceded by sporadic
events of violence.
Worse, the CA 44 (unlike the Sarkaria Commission) appears to have treated the
two expressions as being somewhat akin. The statement
of objects and reasons to the CA 44 is indicative of this treatment,
“internal disturbance not amounting to armed rebellion would not be a ground
for the issue of a Proclamation”.
As if to suggest that the sole virtue (or vice)
in the former expression was the possibility of it encompassing a peaceful upheaval.
And in this sense, despite all its acclaim and the celebration that surrounds it,
the CA 44 by deleting the expression “internal disturbance” may have done us a disservice.
So, while being mindful of the sad interruption
to our democratic experience, as we witness a surge in cases of epidemic, you might
see logic in the argument that the Union Executive should be equipped with powers,
to better deal with an unprecedented exigency. By creating a narrow window, the
framers of the Constitution had provided to us a possibility in this regard. Though
terrified by likelihood of a re-run of past horrors, we have thrown this away.
The need to keep pace with the ‘changing’ and ‘dynamic’
times is stereotypically cited as justification for amendments in general. But in
reality, this is trickier, when up against the wisdom of the framers of the Constitution.
For the only respect in which they have proved not the wiser, is the misuse of the
Constitution!