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 (44^th 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 102^nd 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 (44^th 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!

The author is an Advocate-on-Record at the Supreme Court of India and a Partner in the Dispute Resolution practice at L&L Partners, New Delhi. Views are personal.