Even as governments all over the world are scrambling to control the coronavirus outbreak, the disaster that this pandemic has brought along with it has impacted the socio-economic viability of all strata of society. The challenge today is to strive towards a higher level of understanding between the central government, state governments, panchayats, corporate sectors, civil societies, and citizens to ramp up the preparedness for mitigating the damage and expanding the cure.
Though we have a robust legal framework including constitutional protection, the current situation has brought the malleability of the legal framework to test by necessitating a realignment of laws to contain the spread of the pandemic by prioritising life over personal liberty and at the same time ensuring the continued and uninterrupted flow of essential commodities and services.
The Constitution of India under Article 355 places a duty on the central government to protect all states against external aggression and "internal disturbance" and to ensure that the common governance of the state is carried on in accordance with the constitution.
Interestingly, Entry 29 of the Concurrent List under the constitution empowers the central as well as state governments to legislate on matters pertaining to the prevention of infectious or contagious diseases spreading from one state to another. Further, the state governments are empowered to deal with the matters related to public health and public order which are listed at state list Entries 1 and 6, respectively.
Accordingly, even before the country-wide lockdown, the government of National Capital Territory (NCT) has through an order dated March 22, 2020 imposed a limited lockdown within the NCT region and has stipulated the conditions of the lockdown, which vary from the definition of 'essential services'.
For instance, all public transport, except for 25% of DTC buses, were not permitted to operate during the lockdown period, whereas the services/establishments allowed to operate, are restricted to offices charged with law and order and magisterial duties, police, health, fire, prisons.
Fair price shops, electricity, water, municipal services, the legislative assembly of Delhi, print and electronic media, banks, telecom/internet and postal services, e-commerce of essential goods, food items, take away/home delivery in restaurants, chemists, petrol pumps, animal fodder etc.
These measures were to be in force until March 30, 2020. Similar measures by way of notifications were also adopted by other state governments such as Maharashtra, Telangana, etc.
Further, in an effort to combat the COVID-19 pandemic on a national level, the central government, on March 24, 2020, announced a 21-day lockdown across the country until April 14, 2020 by invoking The Disaster Management Act, 2005 ("DMA 2005").
An order has been issued by the central government directing the various ministries and departments of the central, state and union territories to implement the measures prescribed under law. To address the current epidemic outbreak, the central government has included COVID-19 to be a notified disaster, a critical medical condition or pandemic situation.
While the invocation of DMA, 2005 has ensured the restriction of movement except for activities related to the movement of essential commodities and services.
To ensure continued supply and prohibition of hoarding of essential commodities, simultaneously provisions of century-old Epidemic Diseases Act (EDA), 1897 have been invoked that allows states to take appropriate measures that are needed to implement the prevention of infection, and anyone contravening the provisions is amenable to prosecution, including imprisonment up to six months (the penalty varies with the severity of the disobedience).
EDA gives the power to take special measures and prescribe regulations against dangerous epidemic disease. Under the EDA, temporary provisions or regulations can be imposed on the public to tackle or prevent the outbreak of a disease.
It may also give authorities the power to inspect "persons travelling by railway or otherwise, and the segregation, in hospital, temporary accommodation or otherwise, of persons suspected by the inspecting officer of being infected with any such disease".
Invoking the provisions of the EDA, the government of NCT has also issued the Delhi Epidemic Diseases COVID-19 Regulations, 2020 for the prevention and containment of COVID -19.
A question that may arise in the present situation is the possibility of conflict in the directions issued by the state governments with that of the central government.
The answer is two-fold. Firstly, in terms of Article 254 of the constitution of India, in case of any inconsistency between the laws made by the Parliament and the laws made by the legislatures of states, the laws made by the Parliament shall prevail. Secondly, Section 72 of the DMA, 2005 provides that the provisions of the said act shall have an overriding effect on all other laws, to the extent that there is any inconsistency between them.
It may be possible that invoking DMA and EDA are not sufficient to ensure the smooth functioning of the normal life of people. Unarguably, securing the availability of certain necessary items and their regular supplies are equally critical.
The objective is on one hand to enforce a lockdown to curb the spread of the virus and on the other hand to ensure that our country can navigate through the challenges brought about by such lockdown by maintaining essential goods and services.
To achieve such a holistic goal and to ensure continued supply and prohibition of hoarding of essential commodities, the following laws have been put in place-Essential Commodities Act,1955 (ECA) and Essential Services Maintenance Act, 1981 (ESMA).
The government has brought certain items within the ambit of essential commodities under ECA and has ensured supply of essential services under ESMA to continue throughout the country.
ECA, since its inception, has been used by the governments to regulate the production, supply and distribution of a whole host of commodities, it declares 'essential' in order to make them available to consumers at fair prices.
Under the ECA, the central government may, if it thinks that it is necessary to maintain or increase supplies of any essential commodity or make it available at fair prices, regulate or prohibit the production, supply, distribution and sale of that commodity.
Accordingly, the central government issued a notification dated March 13, 2020 under Section 2A(2) of the ECA categorising "masks (2ply & 3ply surgical masks, N95 masks) & hand sanitizers" as essential commodities up to June 30, 2020.
This was followed by a notification dated March 21, 2020 whereby the prices of masks (2ply & 3ply), the Melt Blown non-Woven Fabric used as a raw material in production of the masks, masks (2ply & 3ply) and hand sanitisers were regulated by the central government up to March 30, 2020.
Essential services, on the other hand, under ESMA provide for the maintenance of certain essential services to ensure the regulation of normal life of the community.
As per Section 2(1)(a) of ESMA 'essential services' includes any postal, telegraph or telephone services, any railway or transport services, services in connection with any major port, armed forces of the union or with the production of goods for any purpose, connected with defence, sanitation or water supply, hospitals or dispensaries, banking, production, supply or distribution of coal, power, steel or fertilisers etc. or any other service connected with matters with respect to which the Parliament has the power to make laws.
Therefore, the definition of essential services is expansive and covers within its ambit various services.
Through the guidelines, the government has redefined the scope of essential services during this on-going pandemic. Unlike the ESMA, all transport services, except for those required for transportation of essential goods, fire law and order and emergency services have been prohibited.
All hospitals and allied services such as chemists and pharmacies are allowed to function. The penalty for violating the aforesaid measures has been prescribed under the DMA, 2005, which includes imprisonment for up to two years for various offences. This is apart from Section 188 of the Indian Penal Code.
Therefore, the government has taken into account, the extraordinary requirements of the present situation and has accordingly tailored the services which are allowed to operate during this pandemic.
Sadly, the lacuna in the system still lies in a well-coordinated implementation of combative measures. Despite the fact that the Disaster Management Act has come into force in 2005, yet the preparedness in mitigation efforts and response mechanism including coordination among different central ministries, state governments, and grass root bodies such as Gram Panchayat, civil societies, corporate sector and citizens seem to be inadequate.
This resulted in chaos over the initial days of lockdown, witnessing a mass exodus of migrant workers from one state to another. The remedy appears to be in concerted efforts under an organised structure with participation of local, state and central bodies for strengthening the disaster risk reduction efforts, which have been put in place, for the time being.
(The author is Advocate & Managing Partner, RRG & Associates, Law Offices.)