The pandemic, law and judicial review

The current pandemic has hit us with no known parallel in human history. Its sudden wide spread was never anticipated, its scale is unprecedented and humanity has yet to fathom its consequences. We have witnessed worldwide inadequacy of the medical sciences, hospital infrastructure and efforts to treat those infected with COVID-19. The political systems, governance and global leaders, whether liberal democratic or authoritarian or of whatever persuasion, are baffled by what may follow next.

The economy, industry and trade, both at global and local levels, are in shambles. The daily aggravation of the humanitarian crisis defies description, though one can feel its incremental depth and magnitude everyday.

The shock to the existing state of law, legal framework, and judicial systems has been equally immense, if not more. The initial response of the judiciary in our country has been one of extra caution. This has invited criticism, which may or may not be fair, depending on how much judicial restraint you would think should be used to deal with this extraordinary crisis.

The pandemic-induced lockdown created a state of siege, making us all show greater deference to executive command. At the same time, massive judicial infrastructure, otherwise hugely overused, suddenly became unusable with the closure of courts. In the process to avoid daily crowding of thousands of lawyers, litigants and judges with their paraphernalia, normal courts have become inaccessible.

However, pandemic or no pandemic, social conflicts and disputes between the citizens and the State do not stop. Therefore, the courts have adapted to the situation, to conduct virtual hearings.

Before we go further, let us have a brief look at the state of law to deal with pandemic in India. The Centre and the states have latched on to two enactments. One is the Epidemic Diseases Act, 1897 - an old colonial enactment, for long in disuse. This was introduced in response to “the spread of bubonic plague” in Bombay, for which the title of the Act was considered sufficient to explain the object. It was meant to deal with local epidemics and not global pandemics like the current one.

In a law with only three sections, one is devoted to its extension to the whole of India. Section 2 provides that when the state government is “satisfied” of an epidemic disease, it may take measures and prescribe temporary regulation as may be necessary to prevent its outbreak. Section 2A provides that when the Centre is “satisfied” of an epidemic disease, it may “take measures and prescribe regulation” for person or ship intending to sail in or out . Section 3 provides for prosecution u/s 188 of the Indian Penal Code (IPC) for any person disobeying government orders.

The scratchy powers under this Act are expanded by amending Ordinance of 2020 to add Sections 1A, 2B and 3A to protect health workers from acts of violence and expansion of Section 2A to regulate movement of all vehicles and persons.

The other enactment invoked is the Disaster Management Act, 2005 - 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 idea is to create an institutional mechanism by way of national, state and district level Disaster Management Authorities, aided by advisory and executive committees/sub-committees to draw, implement and monitor plans and ensure measures taken by various wings of government at various levels.

From all accounts, the lawmakers never contemplated to deal with this kind of global pandemic. Rather, it was designed to deal with floods, cyclones, earthquakes and such natural calamities or man-made disasters like the city-wide industrial gas leaks we face from time to time.

Nonetheless, there is comprehensive institutional framework for disaster management which can be pressed for the current pandemic. There are also whole a host of miscellaneous provisions for prohibition against discrimination; power of Central government to issue directions; power to requisition resources, property, vehicle and personnel; media communication, penalty and prosecution. It also postulate a permanent institution to study and qualified  force (NDRF) to tackle natural disasters like one deployed in West Bengal for cyclone Amphan.

In our Constitution, the legislative competence to deal with the current pandemic appears to fall in Entry 97 of List I as a matter not enumerated in List II or List III. There is also concurrent power with the Centre and the states in Entry 29 of List III for "prevention of the extension from one state to another of infectious or contagious diseases.” Otherwise, the "public health and sanitation; hospital and dispensaries" is a state subject under Entry 6 List II which only can regulate hospital treatment.

In the spirit of co-operative federalism, the Centre has paramount powers to deal with pandemics, which it shares by delegation with states, who are under obligation to provide for public health, sanitation and hospitals. In the present pandemic, in exercise of powers under the above Acts, the Centre has passed a series of orders by centre since March, which the states have further clarified. However, the institutional mechanism remains ad-hoc, with major powers concentrated with the Prime Minister's Office and the Home Ministry. It is only now after Lockdown 4 that states are given more powers regarding zoning and discretion to regulate permissible activities at local levels.

The current pandemic appears to have stayed longer than expected. It also appears so unique that we are not able to have a Disaster Management Plan at the national, state and district levels, even after 60 days. Maybe the machinery under the NDMA is not effective, or the experts are clueless. Whatever be the case, the need for enforcement of a legal framework to deal with it in an institutional manner is more pressing now than ever before.

We need publicly known formal advisory boards of experts at the levels of Centre, state and district. We also need Disaster Management Plans to draw, implement or monitor to test, trace and contain the pandemic. For some aspects of disaster management, a much wider dialogue, transparency and collective mitigation of specific hardships are needed. It all can be best complimented by judicial oversight, which can ensure devolution of power and institutional response instead of personal heroism.

There is a need for an institutional mechanism to deal with resolution of conflicts between the Centre and the states, or the states inter-se, or within a state caused by different yardsticks from one district to another.

There are lots of other issues emerging now that can be resolved only by robust judicial review. For instance, on the compulsory use of tracing apps like Aarogya Setu, who else can adjudicate claims of invasion of privacy? Or to enforce provision of basic necessities so that migrants can stay in host states, with measures to make available transport for those wanting to go back to their home states. Or to address the reluctance of the home state to allow them back. Or misuse of power to quarantine on communal lines or discrimination among criminals in matters of quarantine. Or the claim of mall owners who clamour for opening on the ground that they are better equipped than open markets to ensure social distancing.

There are also whole hosts of inter-parte issues like force majeure, payment of wages to workers till re-opening, liability to pay rent, royalties, debts, taxes etc.

In some matters, virtual courts have shown greater expediency to grant hearing and render a decision at remarkable speed, despite the constrained capacity of virtual courts. Thus has arisen the endemic issue of priority for judicial adjudication.

The pandemic has not changed but created more challenges for the long way to go, a lot to be done, and a list of never-ending expectations. A very unusual time that judiciary rather be criticised for being activist than other way round.

The author is a Senior Advocate at the Supreme Court of India.