Whether The Indian Judiciary Is Equipped To Declare ‘Medical Emergency’ : An Analysis Of The Indian Constitution

COVID-19 is a disaster that has engrossed from Wuhan, China. Although over the last few months this has travelled many countries and the reason for the birth of the Coronavirus is still not known. Some say that it is a virus which is a mixture of several viruses such as swine flu,  bird flu etc., However the virus has spread all over the world and has become irresistible while taking several lives in the universe.

The COVID-19 has also spread into our country and though the Central Government has taken precautions still it is an uncontrollable virus that is changing its colour by mutation and the recent one is spread through spike and recently in some parts of the State it is found that it is converted into the third mutation.

The pandemic has led to the invention of vaccinations by the Indian Health Care System and the fact remains is that not only in India but in the entire Globe as the disease is pandemic. Though several countries have invented vaccination still such vaccination are not final. India has also invented vaccination and exported the same to outside India, of course, as usual, nobody in the country has given much priority to the vaccination and as such, there is a huge loss of vaccination in India.

Be that as it may, the reason for writing this article is the comments of the Hon’ble Supreme Court recently on COVID -19 virus, seeing the turmoil the Country is facing, stated that it would think whether it can declare a health emergency or the High Courts would declare the health emergency if the centre of the States does not declare. Can the Hon’ble Supreme Court or the High Courts, declare such a health emergency has hit my mind and is what lead me to write this article. If any advocates or the citizens of this country are pleased to comment, I will take the comments in a very positive way and would learn from such comments.

The epidemic Diseases Act 1897 is formed with the object “Better Prevention” and the spread of dangerous epidemic diseases. This law does not even define what is “epidemic disease”. The word “hazard” has been taken into consideration by the Delhi Health Bill and the bill defines it as an outbreak of disease or epidemic. It says that a situation or a condition that may cause or result in loss of life, harm to the safety or harm to the health of person or restriction of or damage to property or any part of the environment. On March 12, 2020, new regulations have been referred and Lt. Governor of Delhi has notified this law. The Disaster Management Act 2005, no doubt prescribes certain incidents such as disasters,  establishing a multitier system with  Governments and authorities constituted under are brought within the purview of  Disaster Management Act 2005 which operates at  National, State, Districts and local levels.

The ranging of powers is wide enough which includes the controlling of traffic, peoples movements and make available necessary resources requiring experts and consultants.

The Corona Virus is an epidemic disease that has lead several countries like India into a huge loss of mankind, health, wealth etc., and which would take years for the countries to gain from the losses that are caused because of the epidemic.

In India, the Epidemic Diseases Act 1897 though has been formulated still specific legislation is required to replace the outdated 1897 law, which has been recognized by the Government at the centre, as a result of which the National health bill in 2009 and the Public Health (Prevention) Control and Management of the epidemic, bio, terrorism and disaster bill in 2017 have come. However, as of date, the bills have not been converted into Acts to my knowledge and 1897 law continuous to be in force.

In my opinion, article 352 of the Constitution deals with the Proclamation of the emergency and an emergency could be introduced on the grounds of war, external aggression or armed rebellion which is introduced by 44th Amendment substituting “internal disturbance”.

Article 353  permits the  Central Government to direct in State how to use the executive power of the  State apart from the Union and it can prescribe how the executive power thereof is to be exercised. It permits the parliament to make laws conferring powers and imposing duties, upon the Union or officers and the authorities of union notwithstanding that it is not enumerated in Union List. It also extends the executive power of the Union to give declarations under clause (a)  and the power of Parliament to make law under clause (b) shall also extent to any State other than a State in which or in any part of which the proclamation and emergency are in operation.

Article 354 deals with the application of provisions relating to the distribution of revenue while a proclamation of emergency is in operation which would be executable by the president of the country, of course, this article specifies that every order made under this article should be placed before each house by parliament.

Article 355 prescribes that the union must protect every State against external aggression and internal disturbance and it also prescribes that the Union should ensure that the Government of every State is carried on in accordance with the provisions of the Constitution of India.

Article 356 and 357 deals with the failure of the States in Constitution machinery and the exercise of legislative powers under the proclamation issued under article 356.

It is very important to know about article 358 which enumerates that during the time of emergencies article 19 can be suspended, therefore no one can claim the fundamental rights enumerated in article 19 during the emergencies prescribed under article 358. In continuation of article 358, article 359 suspends the enforcement of fundamental rights confirmed by Part-III during the emergency.

It is a fact that internal disturbances have been replaced in article 352 and it continues to figure in article 355. Article 355 casts a duty on the union to protect all the States against external aggression and internal disturbances and the Union shall ensure that the Government of every State is carried on as per the provisions of the Constitution.

Therefore this article provides for the imposition of emergency in a State in case of breakdown of constitutional machinery in the State.

Article 360 provides for a financial emergency which is not relevant to this article as it is not the financial emergency that is seen by the courts or by the Union or the States, but it is a health emergency that is seen by all the constitutional agencies.

The country of independent India has witnessed the State of emergency that is declared thrice. The first instance was between 26-10-1962 to 10-01-1968 during India China War and the 2nd instance was between 17-12-1971 which was proclaimed during the Indo Pakistan war and the 3rd one was a political proclamation or instability under the ex-Prime Minister Smt. Indira Gandhi’s tenure was declared as an internal disturbance but this term was too vague and is a wide connotation which leads to the 44th Amendment of the Constitution of India in 1978 substituting the words ‘internal disturbances’ with armed rebellion.

Till this time that is the pandemic COVID-19 has invaded into the country, the country has never felt to declare health emergency or there is no such word in the constitution that can be found which prescribes it as a health emergency and all the emergencies as stated above either by external aggression or by internal disturbances or by armed rebellion are only prescribed.

We have to necessarily find or interpret the “internal disturbances” caused by the pandemic disease to be finding a place in the connotation “internal disturbance”. However under Article 355 or 356, the Government would be unable to exercise the drastic measures contemplated under article 352, however secure, maybe because of its substitution with armed rebellion in article 352, but the internal disturbance as prescribed in article 355 should be interpreted in such a way to include the pandemic disease also and the health emergency can be declared.

The principle of “necessitas non habetlegem” which means necessary knows no law and this principle or doctrine has to be implemented to the term Corona Virus which is mutating so rapidly and according to me will fit in the gambit of internal disturbance defined in article 355.

Now the whole purpose of writing this article is can the courts under the constitutional powers vested in article 32 or under article 142 or article 226 can declare a health emergency. Article 32 only remedies with enforcement of rights conferred under Part –III and it prescribes to move the Supreme Court by appropriate proceedings for the enforcement of the rights and prescribes the Supreme Court’s power to issue directions or orders in W.P.

Article 142 prescribes enforcement of directions or orders of the supreme court and orders as to discovery etc., and this article clearly says that subject to the provisions of any law made on this behalf by Parliament, the supreme court has got the power to make an order to secure the attendant of any person, the discovery or production of any documents or the investigation or procurement of any contempt of itself.

Article 226 prescribes that notwithstanding anything in article 32 every High Court has the power throughout the territories in India concerning its exercise of jurisdiction within which the cause of action wholly or in part arises and the necessary parties shall make applications in this behalf and it extends that the powers conferred on a High Court under this article shall not be in derogation of the powers conferred on the Supreme Court by clause (2) of Article 32.

In nutshell, no law can be passed by the Supreme Court or High Courts but such laws can be questioned before the High Courts or the Hon’ble Supreme Court. The only power to make a law by legislation is on the state or the centre and the emergencies as mentioned above under article 352 to 360 can only be passed by the Union and nobody else has got the power declared by the Constitution or embedded by the Constitution.

In other words, a constitution as drafted in the year 1949 and as approved in the year 1950 cannot be rewritten but can be amended by adding or substituting certain articles.

Therefore according to my humble opinion, the Courts does not have the power to pass a health emergency as health emergency a bill that has to be approved by the President of India and hence therefore it is only upon the approval from the President of India an emergency bill can be declared or procured in the country.

Hope that the article is useful and any comments as narrated above are welcome as such comments would be useful for the general public and also to me to developing knowledge and wisdom.

*****

Author Mr. M. V. J. K. KUMAR, is Senior Standing Counsel for Central Excise, Customs & Service Tax at High Court of Hyderabad.

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One Comment

  1. Ravinder Sachdev says:

    Good article. I agree with you. The domain of judiciary is technically restricted to interpret laws from the perspective of constitutionality. But of late, due to judicial activism, the judiciary has been issuing directions on the subjects which are within the domain of executive on the ground of protecting fundamental rights.

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