The need of the hour amid Covid-19 crisis.
It is fundamental duty of the government to secure its subject in the nation. The world health organization declares that Covid 19 is worldwide pandemic appearance from china. The main focus is to maximize public safety and security. Battling the covid 19 virus, government attempt to channeled to limit the spread of the virus through ‘social distancing’ and restriction on unnecessary movement of the peoples. Country like India witnessed epidemiological transition from very long history. Such pandemic imposes very burden on so many things of the country not only during the pandemic but after the pandemic also. This paper attempts to present comparatively analyses of various provisions adopted by the government and its relevance as per current scenario.
“The pandemic is a human crisis that is fast becoming a human rights crisis.”
-UN secretary General Antonio Guterres
On March 11, 2020 world health organization declares the COVID- 19 is a pandemic. The disease caused by the SARS- CoV-2.intially this virus limited to the china only but now it was spread almost all the countries. The country like India where there is high rate of population. There is lack of awareness among the people regarding the hygiene, sanitization. Except the urban area there is not that much standard living condition. The area where inadequacy of ventilation and closely situated house its, and this area is hot spot for corona virus. Because of that the union government declares nation wide lockdown. Sometimes this step violates the rights of the citizens. Following are the some of the provisions invoked by the government to tackle pandemic.
Indian legislations to deal with pandemic are -
· The Epidemic Disease Act, 1987
The Epidemic Disease Act came into force on February 4, 1897. One of the most important legislation from colonial era is “Epidemic Disease Act, 1897”. This act is very old framework almost 123 years old. As well as one of the best and last colonial era legislation. The central government decided that all states should be advised by ministry of health and family welfare to the provision of section 2 of the act. It means the advised by the ministry state government need to be enforced. That includes quarantine, restriction of entry, screening, use of sanitization etc. all this steps to curb the chain of corona virus. This act gives power to state government to take any measure to stop the spread of the disease. But also at other side this act is silent on so many other aspects. This act need to modify as per today situation it is oriented towards the travel by ship but silent on the part of air travel which is common part today. Again the applicability of this act whole India except the territories which immediately before the 1st November, 1956 were comprised in part B states. This applicability needs to relook. Although the act given express provision regarding isolation , quarantine but the act is totally silent on distribution of vaccine and drugs and implementation of other measures. On 22 April 2020 central government by using his power give permission to inspect the bus, railways and all other such vehicle arriving and living from country or one state to another state. Moreover the central government is given only advisory jurisdiction. This is unconstitutional as it based on the doctrine of ‘excessive delegation’. This can be highly detrimental in grave emergencies and disasters, especially when the state fails effectively regulate the crisis.
· The Disaster Management Act, 2005
The central government has declared covid – 19 as a ‘notified disaster’, ‘critical medical condition’, ‘pandemic situation’, all this comes under the ambit of disaster management act. This act gives wide power to deal with the crises also gives the power to issuer guidelines, plans, policies. With using power under this act the national, state or the district authorities can form various management authorities to manage the pandemic. The National Disaster Management Authority headed by the prime minister is empowered to lay down direction and then guidelines to reduce the risk. Section 51 of the Disaster management act provides punishment for obstructing any authorities under this act or non- compliance with the direction issued under this act. Section 52 of his act makes provision against ill- fated people that maliciously seek to get benefits from the government based false claims. Section 54 of the act provides for imprisonment up to 1 year for those who make a false alarm or warning regarding a disaster or its severity or magnitude. In pandemic the fake news spread faster then the virus. To put bar on such mollified intention peoples this section helps.
· Essential Commodities Act, 1955
This act empowers it to regulates or prohibits production, supply, distribution etc. of essential commodities by taking various measures such as fixing prices and stocks limits, boosting production, scrutinizing accounts of dealers etc. any individual violates this provision shall be punished with imprisonment of 7 years and fine or both.
· Prevention of black marketing and maintenance of supplies of essential commodities act,1980
The major loss during the lockdown has been loss of production because of reduce of labor, restriction o transport, non availability of raw material, this several factors leads to the increase the unlawful activities on marketing. The situation where the health and the safety is major important the black-marketing is increase. So many state face scarcities. This act also empowers the state government to detain offender who practice such unlawful activities.
· Essential Service Maintenance Act, 1968
To uninterrupted availability of essential service such as water supply, gas supply , electric supply, or the persons who engaged in the essential service such as police, doctor, defense. Medical etc this act amended. The object of the act is to maintenance of the certain essential service to human functioning. And to give some privileged who take risk and engage on such essential services.
Violation of the provisions of above mentioned act attracts the penal provisions of the Indian Penal Code, 1860. When government the steps to ensure public heaths and security its duty of the citizen to obey the order of the government. But some peoples behave carelessly by disobeying orders, concealing the travel and medical history, not fulfill quarantine measures. Such behavior of the peoples not only risked the lives of themselves but also the lives of there near and dear once. Following are the some of the penal provisions which attracts who violates the lockdown provision.
· Section 188 – Disobedience of the order duly promulgate by a public servant. This is cognizable and bailable offence.
· Section 269- Negligence act likely to spread infectious of disease dangerous to life. This is cognizable and bailable offence.
· Section 270- Malignant act likely to spread infection of disease dangerous to life. This is cognizable and bailable offence.
· Section 271- Disobedience to quarantine rule. This is non- cognizable and bailable offence.
A person committing offence under this section shall be penalized with imprisonment or fine or both.
Human rights & fundamental rights during pandemic
Our fundamental rights mentioned in part third of our Indian Constitution came from human rights. Human rights and fundamental rights are one and same in some extent. Life of the human being is not merely animal existence which means a dignified life as mentioned in Article 21 of Constitution. Equality, dignified life, liberty are nothing but pillars of democracy. Some steps like imposing section 144 of CRPC throughout the nation violates freedom of speech and expression, assembly and movement grated in article 19 (1), (a), (b), (c). But those orders meet the test of reasonable restriction as per article 19. Article 14, 19, 21 recognized as golden triangle of our Indian constitution. Even in disaster or emergency situation like pandemic or today’s covid 19 government cannot encroach upon the fundamental rights and human rights of citizens. But in some cases as per the legislation to deal with pandemic situation some rights may taken away. We need to look over in between the lines while saying that our rights are violated. And article 32 which is heart and soul of our constitution is open to all. If someone thinks that without the valid reason government infringed fundamental right then they can knock the door with the help of writs.
Role of police administration and their brutality
As per section 4 of epidemic disease act, No suit and proceedings lies against any person or authority for anything done or in good faith intended to be done under the act. Thus giving such unrestricted and absolute power sometimes leads to anarchy. The lockdown measures allow relaxation to certain class of people to fulfill essential needs. No provision of the Police Act, 1861 gives power to power brutalize citizen and use of arbitrary measures against them. But we can see during this lockdown so many people assaulted, beaten till the death, push-ups, sit-pups, crouches, workers were suffered etc. such use of arbitrary power by the police not only fringed the common man venturing out to fulfill his essential needs but also the workers delivering such essential goods and service. Mere sustentation of the officer not meets the justice. They must be dealt by the court in accordance with the law. We understand that when everyone sitting at home enjoying the family time there are some persons who fulfilling there duties. But sometimes it was used to violate the fundamental rights of the citizens. They should not resort to excessive use of the force or function in contravention to the legal framework. Police misconduct and excessive use of the power condemned by the courts in many judgments it has been held that state is liable to grant the monetary compensation for infringements of fundamental rights.
According to the justice Bhagawati, ‘the right to live is heart of the constitution, the most organic and progressive provision in our living constitution, the foundation of our laws”. The some of measures taken by the government and laws to deal with the pandemic situation not only fail to safeguard the rights of the citizens but also prove its deficiency. Until the strong safeguard is not available to deal with the pandemic legislation is formulated, citizens need to be vigilant and courts need to ensure that there is no transgression o authority. The lack of uniformity between different states highlighted above why it’s happening only because of there is no actionable, workable integrated act in central level. The media is flooded with several disturbing videos which is example of brutality of the superior class people during this lockdown. Government need to take a effective and efficient step to stop all this and better curb the pandemic like COVID-19.
By Shivanjali Mahadev Mane
KLE Law College , Chikodi
· In the Chinese version of this report, COVID-19 is referred to throughout as novel corona virus pneumonia or NCP, the term by which COVID-19 is most widely known in the People’s Republic of China.
· Epidemic Disease Act, 1897, Available at: www.mohfwnic.in
· ANI, ‘COVID -19 notified disaster; centre announces RS 4 lakh ex-granite for deaths’ The Times of India (New Delhi, 14 March 2020).
· Article 21 of Indian Constitution.
· Maneka Gandhi v State of Bihar  AIR 1086 (SC).
· Writanker Mukherjee, Ratna Bhushan, Teena Thacker, ‘corona virus terror in India: Sanitizers, masks sold out, prices peak’ The Economic Times (Kolkata New Delhi, 5 march 2020).
· ‘High level Group of Minister reviews current status and actions for prevention and management of COVID 19 (press Information Bureau, 11 March 2020).