The recent outbreak of Covid-19 and the government response which followed were unprecedented. It has had far-reaching impacts on the lives of citizens. The most stringent measures have been a nation-wide lockdown, travel ban, shutting down industries, schools and universities, mandatory quarantines etc. This affects various rights such as the right to liberty and the freedom to travel and assemble. Criminal proceedings have also been initiated those violating these administrative directions. The justification is the urgent need to protect public health.
Yet, in India, the government response to Covid has almost entirely been by executive decree, with little legislative sanction and judicial oversight. Though it has had a disproportionate impact on the lower strata of the society, there has been little calls for checks, with the general view being that in light of the crisis, a ‘state of exception’ exists. As the crisis progresses, more and more sweeping measures are being implemented. The Telangana CM recently threatened to issue shoot-at-sight orders to enforce the lockdown.
In this article, I analyse the legality of the governmental response from an administrative law perspective. I argue that while the government response is largely justified as delegated legislation under existing statutory framework, it remains limited by administrative law principles and subject to judicial review. I further argue that a fresh legislative framework would be necessary for long term measures.
Emergencies are the classic area in which executive discretion is deemed appropriate. Emergencies may scale up rapidly, and the cost of inaction may be severe. There may not be enough time or information to take decisions through the usual process. A risk of a wrong decision may in fact be acceptable in the circumstances. However, rule of law may not be derogated even in such circumstances. The executive has to act within the statutory and constitutional framework. Basic rights such as right to life and equality are non-derogable even during an emergency.
It is important to locate administrative action within its legal context, which in this case is a federal state. The measures undertaken by the state are taking place at the central, state and even the local level by different authorities. There is no existing legislation in India enacted to specifically deal with public health emergencies. There is no declared state of emergency, as a health crisis is not one of the grounds as per the Indian constitution. The administration has thus largely based its response on rules enacted under the following statutes.
Disaster Management Act, 1995 (“DMA”)
“Disaster” as defined under S.2(d) of Act does not expressly include an epidemic or include a public emergency, and in fact conceptualizes it as being a limited occurrence affecting a specific area. The Act however provides for an exhaustive administrative set up for disaster response.
Section 10 of the Act confers broad powers on the central govt. to “lay down guidelines for, or give directions to, the concerned Ministries or Departments of the Government of India, the State Governments and the State Authorities regarding measures to be taken by them in response to any threatening disaster situation or disaster.”
On March 14th the government notified the outbreak as a ‘disaster’ and 10 days later, invoked Section 10 of the Act to impose the present lockdown.
Epidemic Diseases Act, 1897 (“EDA”)
Although more oriented towards the present crisis, the EDA is a colonial era legislation, only 4 sections long. Yet the Act provides significant power to the executive for the purpose of “better prevention of the spread of dangerous epidemic disease”.
Section 2 of the Act empowers the state government to “prescribe such temporary regulations to be observed by the public or by any person or class of persons as it shall deem necessary to prevent the outbreak of such disease”. The section expressly envisages such situations where “ordinary provisions of the law for the time being in force are insufficient for the purpose.”
Starting with Karnataka, states like Delhi, Maharashtra, Punjab, Himachal Pradesh have enacted their own regulations enforcing quarantine measures.
Under Section 2A of the act, the Central Government’s power is limited to taking measures or prescribing regulations to inspect any ship or vessel leaving or arriving in any port or detention of any person leaving or arriving in the country. The travel ban issued by the government was in exercise of these powers.
The 1897 Act, however, does not outline procedure, or provide for any safeguards, regarding the manner in which powers can be exercised by implementing officers, protection of rights of those affected, expert committees, scientific rationale behind the measures etc. It also does not take into account comprehensive relief measures like treatment, vaccination and compensation.
Testing the administrative response
Delegated legislation can be subjected to broadly 3 types of control – judicial review, legislative oversight, and in-built procedural controls (such as publication and consultation requirements).
In the current paradigm, all three are restricted. Courts are functioning at reduced capacity and are only hearing ‘urgent matters’ on their discretion. Parliament has been adjourned sine die in mid-session and neither the House or its committees can convene to exercise oversight. The laws in question are also not designed to deal with the scale of the present crisis and lack procedural controls.
However, as the higher judiciary slowly transitions to digital filings and virtual hearings, it becomes its prerogative to draw upon the various administrative doctrines laid down in the past, to balance civil liberties with public welfare.
In Indian Express Newspapers (Bom) (P) Ltd. v. Union of India, the grounds on which delegated legislations can be challenged were outlined by the Supreme Court. The court held that delegated legislation does not enjoy the same deference as a statue enacted by a competent legislature. They may be challenged on grounds of being unreasonable or ultra-vires.
The court reiterated in State of M.P. v. Bhola, that delegated legislation should conform to the constitution and the parent act. However, it also observed that “where the enabling Act itself permits ancillary and subsidiary functions of the legislature to be performed by the executive, the delegated legislation cannot be held to be in violation of the enabling Act.”
As discussed earlier, both the DMA and EDA delegates substantial discretionary power to the government. The scope for challenging the regulations under the doctrine of ultra vires is thus limited in present context.
However, in Kunj Behari Lal Butail v. State of H.P., the Supreme Court held that a delegated power to legislate by making rules “for carrying out the purposes of the Act”, cannot be so exercised as to bring into existence substantive rights or obligations or disabilities not contemplated by the provisions of the Act itself. The same would amount to a delegation of the legislature’s essential functions. This indicates that involvement of the legislature cannot be completely by-passed when considering major policy actions.
Additionally, the doctrine of proportionality remains applicable. In India, courts use this doctrine to determine whether administrative actions are disproportionate, excessive or unreasonable. Various actions taken by the government can be challenged on the grounds of these grounds. These limitations on executive action can be traced to fundamental rights under article 14 ,19 and 21, as affirmed by various judicial precedents. The writ jurisdiction of the High Courts and Supreme Court is thus attracted.
Now, to test some of the measures undertaken by the government on these grounds.
The National Lockdown
It is first essential to clarify that a ‘curfew’ or a ‘total ban on individual movement’ has not been imposed yet as per the guidelines issued. Instead it is a restriction on mass gatherings and movement, with the aim to enforce social distancing. Limited to this extent, such a measure would be proportionate and necessary as per scientific evidence.
The ban cannot be extended to a complete stop on movement of goods and essential services, as that would be disproportionate. However, implementation on the ground level has tended to be disproportionate with police enforcing a de-facto curfew by indiscriminately attacking violators, include those with legitimate reasons for stepping out.
Detention of people suspected of being infected does have a degree of legislative backing, and has been envisaged expressly under provisions of the EDA. Authorities have largely also adhered to boundaries of proportionality, imposing home quarantines on low-risk patients and limiting quarantine to the incubation period of the virus.
However, some measures undertaken with the ostensible view of enforcing the quarantine violate the standard of proportionality. The Karnataka government for instance recently published lists of people put under home quarantine in the state. Local administration in other parts of the country are also starting to follow suit. This amounts to a violation of the right to privacy of the affected individuals. It renders them vulnerable to public stigma, discrimination and even compromises their safety.
The Puttaswamy judgement, expressly incorporated the proportionality and necessity requirements when holding the ‘Right to Privacy’ to be a part of article 21. Thus, this measure would be vulnerable to be struck down if challenged as it has a disproportionate impact and did not directly contribute to any legitimate aim.
Section 144 Orders
The executive rule-making at the local level has been made by magistrates and commissioners acting under the powers conferred on them under S.144 of CrPC. It empowers them to issue orders within their jurisdictions to “direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession” where there is an anticipated risk to human “life, health, or safety”.
However, in the recent ‘Right to Internet’ judgement – Anuradha Bhasin vs Union Of India, the supreme court held that the power under S.144 should be exercised in a bona fide and reasonable manner, and the same should be passed stating the material facts, indicative of application of mind, to enable judicial scrutiny of the same.
Several problematic orders issued under s.144 can thus potentially challenged on these grounds such as arbitrary closure of warehouses, ban on individual movement on public roads (issued in response to the migrant movement), as being disproportionate and arbitrary.
I thus conclude by noting that the response to the Covid outbreak so far has been a chaotic body of rules and orders, which raises issues of legal uncertainty, as doubts on the interpretation of poorly drafted rules and rapid amendments grow. This is further exacerbated by loose and erroneous interpretations by authorities.
The present state of a de-facto indefinite ‘emergency by decree’ is problematic. Neither DMA nor the EDA were foreseen to be used in such a manner and have no provisions for parliamentary scrutiny. This wide application of vague executive power is problematic as it threatens to blur the distinction between emergency and ordinary powers of government, enables authoritarianism to the detriment of individual rights, and hampers sound policy making in the long term.
A more appropriate course of action would be to enact a specific statute defining a ‘public health emergency’, laying out the broad policy framework to limit executive discretion, and include safe-guards such as parliamentary over-sight, expert consultation etc. Several countries across the world have taken this route passing emergency legislations with sunset clauses.
This is also necessary as more comprehensive measures affecting substantive rights of private parties are being considered, such as moratoriums on collection of rent, mandatory payment of wages, free-testing obligations on private labs etc. Such substantive obligations should not be imposed by the executive through delegated legislation, nor by an overreaching judiciary.
A fresh legislative framework tailored to deal with the crisis is thus need of the hour. As the crisis prolongs itself, the Indian Parliament should follow the example of its counterparts across the world and adapt its rules of procedure to virtual functioning and remote voting.
Until legislative control on executive power is re-established, the onus is on the judiciary to exercise vigilance and ensure that the executive action conforms to constitutional norms and principles of necessity and proportionality.
Devansh Kaushik is a student at National Law School of India University,