Open Forum

New Delhi, 9 April 2020

Public Health Emergency

EXTRAORDINARY POWER VITAL

By Dr. S. Saraswathi

(Former Director, ICSSR, New Delhi)

The Supreme Court has held that all restrictions imposed on people from entering, attending, or taking part in court proceedings is lawful in the wake of the Covid-19 pandemic. These are considered to be in tune with best public health practices to contain the contagion. The SC made it clear that public health takes precedence over conventions.

When the WHO declared a global health emergency on 31 January after exportation of coronavirus from China to many other countries was noticed, all countries were required to be ready for containment, including active surveillance, early detection, isolation, contact tracing, case management and prevention of onward transmission of COVID-19 infection. India as an affected nation has to take strong emergency measures necessary to control the spread of the epidemic.

Indian Constitution originally provided for three kinds of emergencies -- external aggression, internal disturbances, and financial emergency. The provision for declaring emergency to deal with internal disturbance was removed in 1977 and was replaced by the term “armed rebellion”.   When emergency is in force, the executive power of the Union extends to giving directions to any State as to the manner in which its executive power should be exercised.

Under the Indian Constitution, public health and sanitation, hospitals and dispensaries are in the State List in the distribution of powers. However, prevention of extension from one State to another of contagious diseases or pests affecting men, animals, and plants are in the Concurrent List.

Article 21 of the Constitution guarantees protection of life and personal liberty to every citizen as a fundamental right. The Supreme Court has held that the right to live with human dignity derives from the Directive Principles and includes improvement of public health among the primary duties of the State. The right to health is held to be integral to the right to life and the government has a constitutional obligation to provide health facilities. The SC has upheld the State’s obligation to maintain health services.

The law that gives power to the State to take action in times of epidemics is the Epidemic Diseases Act enacted in 1897 and is being used whenever required. Under this, Central and State governments are empowered to take strong measures to control the spread of coronavirus.

Whether there is any provision to declare specific Health Emergency under the Constitution or not, situation in our country today calls for vesting extraordinary powers with the government to take stern action to control COVID-19 epidemic. As the virus has imported itself from abroad, it amounts to an external aggression from unidentified source – natural or human. The epidemic, because of its severity and speed of transmission, requires strict restrictions on normal activities including movements and contacts, production and distribution of goods and thousands of related work.

Massive human problems like return of migrants to their native places in panic are unavoidable and the governments have to handle them in a humane manner while keeping strong grip over the measures undertaken. Without some extraordinary powers and their strict application, and without tightening rules and procedures, it is not possible to fight epidemics and their pathological and human friends.  

The impact of all this will adversely affect the nation’s financial state as in all other countries and will demand strong financial regulations as emergency measures to tide over the crisis and   save our economy. Hopefully, our strong informal economy and the unorganized sector will keep the country going.  

The principal criteria in declaration of emergency in any democratic country appear to be present in India today. They include an exigent situation that demands prompt decisions accompanied with quick action; enormous actual and potential danger to lives, and safety and health of the people; and a situation that could not be controlled by normal laws, regulations and procedures.

Added to these, pandemics occur without any warning and do not respond to normal action.  They are invisible enemies. The entire government machinery at the Central, State and local levels and various private and voluntary agencies are fully engaged in fighting Covid-19 from various angles – a situation that the country had never experienced even in war time. There can be and should not be any opposition to granting extraordinary powers to the government to quell the disease – no matter by what name it is called.  

Section 144 is imposed in many places by state governments, but not strictly enforced. Even policemen trying to disburse crowds are attacked. Governments have to take strong action if advices do not work.  That is the compulsion of public health emergency.

The Madras High Court, in the overall interest of the citizenry, imposed a blanket ban on all protests including anti-CAA agitations till Covid-19 subsides. The protest at Shaheena Bagh in Delhi continued long after the spread of the virus. Our democracy seems to safeguard people’s right to protest as a sacred right to the utmost extent at the cost of public health. Similarly, many religious events are still going on permitting crowding putting religious faith and propagation as a priority before public health.

If people do not and are not willing to understand the seriousness of the situation and if there are groups out to sabotage efforts to contain the epidemic and contribute to panic and disturbances, there is no alternative to strict enforcement of public health emergency measures by assuming extraordinary powers.   

During health emergencies, there has to be a national consensus to subordinate normal way of life to health prescriptions. Any criticism of the lockdown as “ill-planned” and movement of migrants as “alarming”, without offering constructive suggestions, is cheap politics. 

In Australia, state and territory health authorities manage health emergencies. The National Health Security Act 2007 is supported by the National Health Security Agreement between the Australian Government and State Territory Governments which sets out a framework for decision-making to support a national response to health emergencies.

The British PM said that all political parties have a duty to work together at a time of national emergency. In the US, Secretary of the Department of Health and Human Services under the Public Service Act determines the existence of a disease or disorder or outbreak of an infectious disease or bio-terrorist attacks that poses a health emergency. The declaration lasts for the duration of the emergency or 90 days, but may be extended.

State laws in the US provide for health emergency powers to permit designated officials -   Governors and top health officers - to take extraordinary legal action to respond to serious health situations when adherence to ordinary laws and procedures are not enough to save lives.

COVID-19 has brought out the paramount importance of State action in emergencies, particularly the role of the Union Government leadership. The significance of State-people cooperation is also emerging as a potent weapon to fight the disease. Union-State cooperative action and an unusual spirit of cooperation showing its presence between different political parties are hopeful signs that the nation can work together at least in emergencies. It is time to repose faith in governments and entrust necessary powers to them foregoing even some of our personal liberty and comfort.---INFA

(Copyright, India News & Feature Alliance)

New Delhi

7 April 2020