On March 11, 2020, Dr. Tedros Adhanom Ghebreyeses, in his media briefing of the novel coronavirus, announced that based on WHO’s assessment of the threat possessed by the coronavirus, WHO has decided to declare the current situation as a pandemic. He further appealed to the nations all over the world to actively take steps and scale up their emergency response mechanisms immediately.
The novel coronavirus is an unprecedented biological disaster, being tackled by the constitutional machinery and the government of India. Acting upon the guidelines issued by the WHO, the Union Home Minister issued the instructions of a nationwide lockdown by invoking the Disaster Management Act, 2005 (‘DMA’). However, to begin with, the imposition of the nationwide lockdown under the DMA is controversial and needs government intervention. This article aims to dissect the DMA and suggest some preferable amendments to aid efficient management of the novel coronavirus and the resultant social shortcomings.
Does the DMA Act include a pandemic like situation?
The constitution and its provisions remain largely inarticulate on the subject matter of ‘disaster.’ The DMA derives its legal stance from Entry 29 of Concurrent List, which states that “Prevention of the extension from one State to another of infectious or contagious diseases or pests affecting men, animals or plants.” The DMA’s objective is to assist disaster management by issuing appropriate mitigation strategies, capacity-building exercising, and much more. The definition of a disaster, as mentioned in Section 2(d) of the DMA, states a disaster as a “catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man-made causes.” This outlines a disaster as a natural calamity. This means that disaster is depicted as only a sudden act ignoring the progressive aspects of a disaster.
However, the South African legislation describes a disaster as a ‘progressive or sudden’ occurrence. Thus, the Indian law ignores the circumstances of a progressive disaster such as the epidemics, which often affect a considerable amount of the population. For instance, the horrifying plague of 1994, which swept south-central, northern, and south-western Indian states or the disease outbreak like dengue and malaria, which infects a large population of people in Kolkata every year. Even after such instances, the government has failed to draw an effective mechanism to fight critical situations and keep a check on these ordeals.
If the circumstances get devastating, as in the current scenario, the various governmental departments will start playing cross-accusations, thus shifting their blame to other civic authorities. Each year approximately half a million people get killed by tuberculosis and sixty thousand by diarrhoeal disease. These critical circumstances do not occur suddenly, and not including these within the ambit of a ‘disaster’ is unreasonable as, in doing so, the concerns of public health fall short from being addressed in the Indian legislation.
Due to the lack of necessary provisions and the inefficiency of the government in passing legislation, the Indian government was compelled to declare coronavirus as a ‘notified disaster.’ The government defined a notified disaster as a critical medical condition. This declaration was made to include the novel coronavirus under the definition of a disaster to make the implementation of DMA possible. On the contrary, a more efficient way of managing this catastrophe could have been the implementation of a new legislature, which defines a systematic set of guidelines to curb this deadly virus without wreaking havoc. For instance, the Corona Virus Act, which was passed by the United Kingdom, has successfully mandated emergency provisions to the authorities to tackle and successfully cope with the on-going deadly outbreak.
However, by expanding the meaning of ‘disaster’ did the government indirectly meant that other epidemic like situations, as mentioned above, can also be regulated under the DMA? Such questions remain open-ended and require government’s intervention.
Is the DMA merely a legislation designed to harm cooperate federalism?
The DMA allows the establishment of various statutory bodies such as national disaster management authority, state disaster management authorities, district disaster management authorities, advisory committees, executive committees, and sub-committees under the government. However, it neglects the possibility of unwanted overlapping duties among these authorities that might inevitably confuse people. Moreover, the coordination among these bodies seems very cumbersome.
Amidst the coronavirus spread, state legal experts are more concerned about the foreseeable damage to the ‘cooperate federalism,’ which is increasingly prevailing, thus compelling that states to relinquish their power to the centre. It is a situation of constitutional crises as states subjects such as law and order, and healthcare has been taken over by the centre without any pre-planning. This includes the decision of creating zones classified as Red, Orange, and Green, compelling citizens into using the Aarogya Setu app mandatorily, and also deciding what all activities are strictly prohibited at the local level. Local authorities, who could have played a significant role in managing the disaster, are hardly mentioned in the DMA.
There exist specific functions for different bodies; however, little has been said about the local authorities. Under Japan’s Disaster relief Act,1947, the governor is mandated to delegate his body to the head of a municipality for better implementation of relief activities at a speedy pace at a local level. Alongside, under the Emergency Programme Act of British Colombia, Canada, the importance of handing over the decision making to the local authorities is emphasised upon. Similarly, it is imperative that the DMA also takes into consideration the role of local-level authorities for better management of the outbreak.
Is the unruly implementation of DMA adding to an employee’s distress?
The order issued by the union ministry on March 29, 2020, directed the payment of wages without cut during the current pandemic by invoking Section 35 of the DMA. Moreover, Section 72 of the DMA gives overriding powers to the centre during an emergency like situation thus specifying, “The provisions of this Act shall affect anything inconsistent in addition to that contained in any other law for the time being in force or any instrument affecting under any law other than this Act.” Henceforth, it indisputably overrides the Industrial Disputes Act, 1947, which had provisions to allow any employer to cut and pay 50% of the total wage payment on the grounds of natural calamity.
Employers are revolting against this order as being ultra-virus because DMA has no power to decide on the amount of wages. They also put up concerns such as lack of income due to the non-operation of the manufacturing sector amidst the lockdown. Thus, demanding that rather than the imposition of arbitrary laws, it would be better if the government intervened and made good the payment of wages to the employees to some extent as it is being done in other countries currently.
Nations around the globe are taking tremendous steps in helping the employers to pay their employees by introducing special schemes and action plans. To suggest a few, in the United States, the government is providing income support of 1200 USD per adult and 500 USD per child for every family. Japan has granted all its citizens a cash payment of 100,000 yen. The United Kingdom has allowed all the employers to get 80% funding from the government for the consecutive three months for salaries of workers up to 2,500 GBP per month. Ireland is providing a temporary wage subsidy of 85%. Informal workers and the unemployed population in Brazil are entitled to temporary benefits of 120 Dollars per month for the next three months on the fulfilment of certain conditions. With heart-throbbing pictures of the distress, migrants are all over the media. It is an alarming stage for the Indian government to incorporate some rational measures.
COVID-19 is a health catastrophe, and there is an urgent requirement to contain it’s spread. While the well-equipped health care systems across the globe have failed miserably to deliver essential services when called for, specific provisions for handling this catastrophe are quintessential. This crisis requires an active effort from the safe medical guards and the legal statutes, to work simultaneously for the best of results. The leaders around the globe have appreciated Taiwan’s preparation for such an unpredictable health crisis. Prompt governmental responses to the medical essentials, along with adequate expertise to mitigate the novel coronavirus from affecting its citizens by actively monitoring the affected citizens are the factors which contributed to Taiwan’s success.
As the pandemic unleashes its far-reaching tentacles, the legislature must take cognisance in public interest and frame suitable provisions on contemporary subject matters such as quarantine, availability of essential goods, restriction on modes of transport, isolation techniques and other ways to protect from this disorder. The Indian model can preferably incorporate laws of Ireland wherein the duty of precautionary measures lies on the infected persons to limit the spread of this contagious disease. The current situation is an alarming stage where the government must work on ground realities such as the distress of migrant workers. India has to upgrade its health care policies and legislative provisions to monitor the pandemic crises by laying out action plans that help to fill in the loopholes for monitoring the current situation more cautiously.