KV Network

The Juridical Response

Decrease Font Size Increase Font Size Text Size Print This Page

Mutahar Ahmad Makhdoomi/ Sartaj Ahmad Bindroo
The old adage “Health is Wealth “reminds us that good health is the foundation on which to build—-a life , a community, an economy and the idea of Good health System linked with Collective Economic Growth is the central theme of the said phrase used by the American Philosopher Ralph Waldo Emerson.
However, the existence of threat to Public Health system from variety of Infectious diseases, mass illness resulting from technological Catastrophes or the malicious distribution of viruses and the potential use of Chemical and biological weapons is the harsh reality of the contemporary world.
All the states of Global Society admit and acknowledge the importance of maintaining the Health Care systems to combat public health crisis with readily available Juridical System of an appropriate Rules and Regulations and available communication systems that inform the public on preparedness plans and serving as clearing houses for crisis Information.
In India unlike the first wave of Covid-19 Pandemic that emerged in March 2020, the second wave is more severe and deadly and that has brought not only the public health system but the whole system of state to its knees and same is evident from the disturbing reports being flashed on Social media Platforms including News-Papers showcasing the scale of crisis.
Millions and billions of human souls are affected directly and indirectly not only at the level of medical response but equally at the level of an appropriate Juridical Response, we may have availability of best doctors, specialists, best vaccines, best drugs but mismanagement in manufacturing ,procurement ,allocation and availability of such medical resources will accelerate the severity of medical emergencies and confound the problem rather than addressing it in a manageable and scientific manner as such here lies the requirement of an appropriate juridical response in the form of an appropriate legal regime so that it may work as a catalyst for the better utilization of our public health system and in the absence of same the public health system is bound to crumble under its own weight therefore an advancement of Juridical Science is directly Proportional to the advancement of medical science and they are Complementary and supplementary to each other.
In view of above prologue, let us critically analyze the present legal frame work of Medical Emergencies, Ever since the Emergence of Covid-19 pandemic the Central Government and State Governments relied upon and resorted to various enactments in order to provide supplemental role vis-à-vis health Care system of our Country and accordingly certain restrictions were imposed upon the Rights of Citizens by way of Lookdown, Quarantine, social distancing etc and in view of grave situations these restrictions fall under the realm of reasonable restrictions in order to maintain the balance between individual fundamental rights including Right to free movement, Right to peaceful assembly, Right to decent burial, Right to Carry on one’s business, trade, occupation or profession with the collective fundamental rights of the whole population and the legal sanctions behind such drastic measures are found in following legislations .
Epidemic Diseases Act, 1897
This is a legislation of Anglo-Saxon vintage; it envisages covering the subject of threat from Epidemic diseases in a rudimentary form .The Act empowers the Central Government as well as state Governments to take special measures by prescribing regulations for the prevention of the out-break of an Epidemic diseases ,this anachronistic legislation first and foremost lacks the comprehensive definition of an Expression “Pandemic” it demonstrated its loopholes when it failed to address the issues of violence against health care workers and damage to property including health Care infrastructure.
And in order to plug the loopholes in the legislation the central Government amended the Act in year 2020 whereby violence against the health Care Workers and damage to property were made punishable offences and putting them under the Category of Cognizable and Non-bail able offences ,the referred amendment was only a patch work propelled by the grave crisis emerging out of Covid-19 Pandemic.
Indian Penal Code, 1860
It is another legislation to fall back upon in order to enforce measures of containment and relevant sections are section 188 (Disobedience to an order lawfully promulgated by a public servant ),269 (Negligently doing any act known to be likely to spread infection of any disease dangerous to life).270(Malignantly doing an act known to be likely to spread infection of any disease dangerous to life),All the offences are Bailable and Cognizable and they owe their genesis to the Macaulaien Era when first law commission was appointed in 1834 under the Chairmanship of Lord Macaulay to prepare a draft of penal code for India it remains to be seen how far these anachronistic provisions are compatible with Contemporary Medical Crisis .
Code of Criminal Procedure Code, 1973
The Authorities frequently resort to section 144 (Power to issue Order in Urgent Cases of Nuisance or apprehended danger) this post Constitutional Legislation empowers the District Magistrates, Sub-Divisional Magistrates and other Executive Magistrates specially empowered in this behalf to issue orders in urgent cases of Nuisance or apprehended danger and violation thereof entails the liability under section 188 of IPC.
However, we have seen during the enforcement of these orders police resort Seizures and attachment of property including imposition of fines how far these measures are in conformity with the due process Clause implicit in the such procedural Prescriptions deserves a due Consideration.
Disaster Management Act, 2005
The Legislation provides the administrative framework to deal with the disasters including Catastrophe, mishap, Calamity or grave occurrence in any area. The Authorities under the Act operate at National Level (National Disaster Management Authority ),State Level (State Disaster Management Authority) and District level (District Disaster Management Authority) here also the basic purpose of the legislation was to Cater the situation like Earthquake, Flood or fire rather than National Medical Emergencies like Covid-19 pandemic and that Constrained the Home Ministry to declare the Covid-19 outbreak as notified disaster so that the provisions of the Act may be applied in present medical emergency .
Besides the referred statutory responses albeit in a rudimentary form the Constitution of India being the lengthiest Constitution of World laying out the detailed framework of vital Institutions and their delineated sphere does not provide any Specific Article dealing with the Imminent danger Caused by Medical Emergencies like present one and express constitutional Cognizance of such a grave situation assumes significance especially in view of reports emerging regarding the stoppage of Medical Oxygen supply and allied mismanagement of manufacturing, procurement, distribution and allocation of Vaccines.
In a situation of grave crisis like Covid-19 with an exponential growth of infected persons and many fatalities, the pressures on our woefully inadequate public resources such as hospitals, shelters, transport etc can be overemphasized and India being a democratic country cannot and should not adopt the Ruthless model of Republic of China and here lies the Scope for tinkering the federal or for that matter quasi-federal model envisaged in our Constitution by way of an amendment to the Grand Norm (Constitution of India) by resorting to power Conferred upon parliament under Article 368 so that threat to the very existence of Constitution Caused by prevalent National Medical Emergency may be addressed in a juridical manner.
The great generalities of Constitution with its content and significance vary from age to age What Could not have been cause of National Emergency in 1950 may be a Cause of Emergency in 2021. The Constitution of India envisages two types of Emergencies at National Level Article 352 (Emergency arising on account of WAR or External Aggression or armed Rebellion ) and Article 360 (Financial Emergency) and one type of Emergency at State Level under Article 356 (Constitutional breakdown of state machinery) and the present National Medical Emergency does not fall under any of referred types albeit in an indirect way it may result in financial emergency by way of an economic breakdown as such Article 352 deserves to be suitably amended by providing a space for National Medical Emergencies or a Exclusive Article in the constitution may be devoted for the purpose with necessary safeguards and Check valves so that it may not be misused like the dark emergency of 1975 besides that laws relating to Intellectual property Laws vis-à-vis manufacturing of Vaccines and life saving drugs should be revisited to meet the Challenges of National medical Emergencies so that necessary Juridical Response by way Comprehensive legislation on the Subject of National medical emergencies may be provided lest the Last resort of Martial Law may be imposed by Armed forces by resorting to Article 34 of the Constitution of India.
(The authors are legal practitioners at High Court of J&K at Srinagar)

 


KV Network

Kashmir Vision cover all daily updates for the newspaper

Leave a Reply

Your email address will not be published. Required fields are marked *