638074413115703588

Rapid Revision Class - Value Added Notes 3
• Constitution and pandemics

• James Madison : In framing the constitutions, we wish them to last forever, we should not lose
the sight of the changes situation demands.
COVID-19 is the first pan India biological disaster being handled by the legal and
constitutional institutions of the country.
The lockdown has been imposed under the Disaster Management Act, 2005 (DM Act).
Though the Constitution of India is silent on the subject ‘disaster’, the legal basis of the DM
Act, is Entry 23, Concurrent List of the Constitution “Social security and social insurance”.
Entry 29, Concurrent List “Prevention of the extension from one State to another of infectious
or contagious diseases or pests affecting men, animals or plants,” can also be used for
specific law making.
Ambit of the Disaster Management Act, 2005
The legislative intent of the DM Act was to, “provide for the effective management of
disasters”. The National Disaster Management Authority (NDMA) under the DM Act is
the nodal central body for coordinating disaster management, with the Prime Minister as
its Chairperson. The NDMA lays down policies, plans and guidelines for management
of disaster (S.6). Similarly, State, District and Local level Disaster Management
Authorities were established, manned by high functionaries. All these agencies are envisaged
to work in coordination.
NDMA so far formulated 30 Guidelines on various disasters including the ‘Guidelines on
Management of Biological Disasters, 2008’.
The 2019 National Disaster Management Plan, issued also deals extensively with Biological
Disaster and Health Emergency.
This is the broad legal framework within which activities to contain COVID-19 are being
carried out by the Union and State governments.
Power bestowed by DM Act on Central Government and NDMA are extensive.
The Central Government, irrespective of any law in force (including over-riding powers) can
issue any directions to any authority anywhere in India to facilitate or assist in the disaster
management (Ss 35, 62 and 72).
Importantly, any such directions issued by Central Government and NDMA must necessarily
be followed the Union Ministries, State Governments and State Disaster Management
Authorities (Ss 18 (2) (b); 24(1); 36; 38(1); 38(2)(b); 39(a);39(d) etc.).
In order to achieve all these, the prime minister can exercise all powers of NDMA (S 6(3)).
This ensures that there is adequate political and constitutional heft behind the decisions
made.
To alleviate social sufferings, NDMA/SDMA are mandated to provide ‘minimum standard of

relief’ to disaster affected persons (Ss 12 and 19), including relief in repayment of loans or
grant of fresh loans on concessional terms (S. 13).
Laws relevant to states:

State governments, in addition to DM Act, have used the Epidemic Diseases Act, 1897and the
various state specific Public Health Acts (eg: Tamil Nadu Public Health Act, 1939) to deal with
the crisis. Taking cue from the ‘Containment Plan for Large Outbreaks (COVID 19)’ issued by
the Union Ministry of Health & Family Welfare which is the Nodal Ministry for biological
disaster, several states have issued COVID specific Regulations. Kerala, in addition to the
above, invoked legislative power under Entry 6 (Public health and sanitation) of State List and
issued ‘Kerala Epidemic Diseases Ordinance, 2020’. Overall, States have also enough legal
power in dealing with this biological disaster, including punishments for disobeying order of a
public servant and malignant act likely to spread infection of disease dangerous to life (Ss 188
& 270 IPC respectively).
Path ahead
Undoubtedly, India’s large population poses an administrative challenge in dealing with any
disasters, especially a pandemic such as COVID-19. However, overall management can be
strengthened through three possible ways.
Firstly, biological disaster of a national magnitude necessitates a close administrative and

political coordination, led by Centre and followed by State governments, Disaster
Management Authorities, and other stakeholders. In the true spirit of DM Act and federal
structure, national and state political and administrative agencies should be more
collaborative and consultative. Issues like movement of migrant labourers, availability of
food, arranging livelihoods to daily wagers, relief camps, entitlement of statutory minimum
relief, etc. that directly affects millions in the country needs special attention. Incidentally,
the ‘Report of the Task Force to review DM Act’2013 suggested that the present structure of
various authorities under the DM Act are not conducive for carrying out the tasks it has been
mandated to perform.
Secondly, success of effective implementation of the national and state decisions under the
DM Act is dependent on its ground level implementation; district administration and local
self-government institutions remains the best bet. As per mandate of DM Act (Ss 30 and 41),
a concerted effort is required to ensure that these bodies are administratively, politically and
financially empowered.
Third and finally, in times such as these, constitutional courts must play its role. There are
complaints of discrimination, police excesses, starvation, lack of medical aid etc. from various
corners of the country. Pertinently, there is bar on jurisdiction of courts (S 71) and there is no
grievance redressal mechanism under DM Act.
Having assumed the role of sentinel on the qui vive (State of Madras v. V G Row, 1952), it is
obligatory on all the constitutional courts in the country to suo motu register PILs and closely
monitor the implementation of DM Act, ensure rule of law and protection of human rights as
guaranteed under the Constitution of India.
Epidemic Diseases Act
§ All states and Union Territories have been directed to invoke provisions of
Section 2 of the Epidemic Diseases Act, 1897, so that Health Ministry advisories
are enforceable.
§ The Epidemic Diseases Act consists of four sections and aims to provide for
better prevention of the spread of Dangerous Epidemic Diseases.
§ It is routinely enforced across the country for dealing with the outbreak of
diseases such as swine flu, dengue, and cholera.
§ The colonial-era Act empowers the state governments to take special measures
and prescribe regulations in an epidemic.
§ It is a state act and not a central act.
Epidemic Diseases Act, 1897
§ The Epidemic Diseases Act aims to provide for the better prevention of the
spread of dangerous epidemic diseases.
§ Under the Act, temporary provisions or regulations can be made to be observed
by the public to tackle or prevent the outbreak of a disease.
• It empowers the state governments to tackle special
measures and formulate regulations to contain the
outbreak.
• Section 2A of the Act empowers the central
government to take steps to prevent the spread of an
epidemic.
• Health is a State subject, but by invoking Section 2 of
the Epidemic Diseases Act, advisories and directions of
the Ministry of Health & Family Welfare will be
enforceable.
o Penalty for Disobedience
• The penalties for disobeying any regulation or order
made under the Act are according to section 188 of
the Indian Penal Code (disobedience to order duly
promulgated by a public servant).
o Section 4: Legal Protection to Implementing Officers:
• It gives legal protection to the implementing officers
acting under the Act.
Section 188 of the Indian Penal Code
§ Whoever knowing that, by an order promulgated by a public servant lawfully

empowered to promulgate such order, disobeys such direction, shall, if such
disobedience causes or tends to cause obstruction, annoyance or injury, or risk
of obstruction, annoyance or injury, to any person lawfully employed,
o be punished with simple imprisonment for a term which may
extend to one month or with fine which may extend to two
hundred rupees, or with both;
§ And if such disobedience causes or trends to cause danger to human life, health
or safety, or causes or tends to cause a riot or affray, shall
o be punished with imprisonment of either description for a term
which may extend to six months, or with fine which may extend to
one thousand rupees, or with both.
§ The Epidemic Diseases Bill was tabled on January 28, 1897, during an outbreak
of bubonic plague in Mumbai (then Bombay).
Amendment to the Act
§ Cabinet amended the Act 2020 stating that commission or abetment of acts of
violence against healthcare service personnel shall be punished with
imprisonment for a term of three months to five years, and with fine of Rs
50,000 to Rs 2 lakh.
§ In case of causing grievous hurt, imprisonment shall be for a term of six months
to seven years and a fine of Rs1 lakh to Rs 5 lakh.
CRITICISM OF THE ACT 2020
Fails to define dangerous diseases, mentions only powers of public servant without
corresponding duties, np procedural guareentes against misuse of powers, blanket
protection to civil servants, regulatory in approach lack ethical and human rights perspective.

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Rapid Revision Class - Value Added Notes 3

• Constitution and pandemics

Power bestowed by DM Act on Central Government and NDMA are extensive.

To alleviate social sufferings, NDMA/SDMA are mandated to provide ‘minimum standard of

Laws relevant to states:

Firstly, biological disaster of a national magnitude necessitates a close administrative and

§ Whoever knowing that, by an order promulgated by a public servant lawfully

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