Constitutional Validity Of Epidemic Disease (Amendment) Ordinance, 2020

Author: Ananya Bhargava, 1st Year, B.A LL.B, Dharmashastra National law university, Jabalpur. Introduction The central government on 23rd April 2020 promulgated an ordinance Epidemic Disease (Amendment) Ordinance, 2020, to amend the Epidemic Diseases Act, 1897.[1] Over the years there arose dire need to protect health care workers. After the imposition of lockdown due to the rapid transmission of a novel coronavirus, there were incidents where healthcare workers and doctors were attacked by the mob. The videos of the attack on workers, who had visited the area to screen suspected residents of the coronavirus, were criticized worldwide. The Indian Medical Association (IMA) also demanded the government to introduce a law to protect doctors, who are risking their lives.[2] Hence, a new ordinance was passed which amended the old Epidemic Diseases act. “This ordinance manifests our commitment to protect every healthcare worker who is bravely battling COVID-19 on the front line. It will ensure the safety of our professionals. There can be no compromise on their safety!” as tweeted by Honorable Prime Minister Narendra Modi. This article will analyze the constitutional validity of this ordinance on the contour of the background of these ordinances making power (Part II), Legal circumstances which resulted in this Ordinance (Part III), Conditions to promulgate ordinance (Part IV), Conclusion (Part V). Background of Ordinance making power Indian constitution was drafted in the mid-twentieth century and this fact gave the advantage to its makers as they could take into cognizance of various constitutional processes happening in the world. The makers might not have foreseen the crisis of today but could have realized the relevance of social and economic conditions that might arise in the future. Thus, draw upon a rich fund of human experience, wisdom, heritage, and traditions in the area of the governmental process to fashion a system suited to the political, social, and economic conditions in India. As a result of this, the constitution turned out to be very interesting and unique. Under British India, Government of India Act, 1915, and Government of India Act, 1935 conferred the ordinance making power to the Governor-General. This was the first glimpse of the provision regarding the legislative power of the executive given under Article 123 of the Constitution of India. Constitutional and legal developments of India have been widely influenced by various factors. Vast and varied experiences, ups, and downs of different eras bashed by invasions and colonization have made the makers of the constitution over conscious and careful that they tend to pre-empt and prevent every untoward incident. Presumably, with this thought preview, during the Constituent Assembly debates, some members led by HV Kamath had demanded the codification of legislative privileges to mark a clean break from the British precedents. Responding to these demands, Dr. BR Ambedkar described the difficulty of including a detailed schedule to list out permissible actions and defended the incorporation of the privileges available to the House of Commons at the time, while also empowering the future Indian Parliament to legislate on the subject.[3] Finally after the long and pertinent discussion, Indian rulers realized that it was for their benefit to retain this power in the new Constitution of independent India. This special power to promulgate Ordinance is confined to India only, as the executive of the U.S and Britain enjoys no such power. This power is formally conferred to the president but as the president works on the aid and advice of the council of Ministers, this power is effectively vested in the Central Executive. Due to the unique history of India, the makers of the Indian Constitution envisaged the power to legislate with the executive head of the State. As interpreted by the Supreme Court of India in A.K. Roy v. Union of India[4], the power to president or governor to issue ordinance is a legislative power conferred by the constitution itself. Legal circumstances which resulted in this Ordinance Case Jerryl Banait v. Union of India[5] plays a prominent role in the passing of the ordinance. In this case, the petitioner, a medical professional, has filed a writ petition in Supreme Court under Article 32 of the Constitution of India as a Public Interest Litigation praying for various directions about pandemic COVID-19. Here the petitioner prays for issuing a direction to the respondent to ensure that guidelines issued by the World Health Organization and the guidelines dated 24.03.2020 issued by the Ministry of Health and Family Welfare be implemented and respondents be directed to ensure availability of appropriate. Petition later highlighted instances regarding the attack on Doctors and Medical staff. The petitioner had brought on record details of such incidents that took place. The Supreme Court after analyzing the incidents issued guidelines mentioning the necessary actions which are needed to be taken by the state against the offense concerning Doctors, medical staff and other Government Officials deputed to contain COVID-19. As the petitioner has the fundamental right for constitutional remedies, the Supreme Court is bound under Article 32(2) to issue appropriate directions, order or writ for the enforcement of such fundamental right, there is no obligation on the part of the Supreme Court to give any particular kind of a remedy to the petitioner. The direction issued by the Supreme Court under article 32 can be interpreted when read with Article 144 of the Indian Constitution which specifies that all the authorities civil and judicial in India shall act in aid of the Supreme Court. This power is been recognized and exercised, wherever needed, by issuing necessary directions to fill the vacuum till such time the legislature steps in to cover the gap or the Executive discharges its role. In the famous case of M.C. Mehta v UOI[6], Supreme Court interpreted that the cases where the field is covered by some statute or subordinate legislation, the Supreme Court, by invoking powers under Article 32 can issue directions especially cases involving greater public interest or public good including enforcement of fundamental rights. Such directions have more often than not been issued where the question involved relates to enforcement of human rights or environmental aspects. It was declared that the interpretation and application of constitutional and human rights have never been limited only to the black letter of the law. Likewise, the petition filed by Jerryl Banait involved greater public interest, henceforth the Supreme Court has the right to issue directions which should be followed by all the authorities, civil and judicial in the territory of India. After the direction issued by the Supreme Court there were needs of concrete legislation to protect medical professionals. And examining this critical situation the president of India felt the urgent need to the recourse of the Epidemic Disease Act, 1897. Conditions to promulgate such ordinances However the directions were issued by the Supreme Court, there was a need for concrete legislation that was fulfilled by the Ordinance. The Ordinance was passed by the president under the backing of Article 123 of the Indian Constitution; this Article gives the power to the president to promulgate Ordinance during the recess of Parliament. Ordinarily, in Indian Constitution, the President is not a repository of legislative powers of the country. This legislative power belongs to the parliament of the union but, intending to meet demand of immediate enactment of laws under extraordinary situations, the Constitution makes provision to invest the President in legislative power to promulgate ordinances. The validity of the ordinance vis-à-vis Article 123 can be tested at two levels –(1) both Houses of Parliament are not in session, (2) He is satisfied that circumstances exist which render it necessary for him to take immediate action.[7] ‘Both the Houses are not in session’ As the article specifies this condition of promulgation of the Ordinance, the power of ordinance making is available to the president only when either of the houses has been prorogued, or is otherwise not in session so that it is not possible by the parliament to enact law. The country had last parliament session i.e. Budget session, which started on January 31st and was scheduled till April 3rd. But due to the looming threat of novel Coronavirus pandemic in the country, the session was adjourned sine die on March 23rd. Hence to justify pressing the need for legislation, the President took up the power to issue ordinance. Even when legislation is not in session, the president cannot issue an ordinance unless he is satisfied that there are circumstances when it is necessary for him to take immediate actions. This curves out the second condition needed to promulgate ordinance. ‘The President is satisfied that circumstances exist which render it necessary for him to take immediate action’ Dr. Ambedkar explained that the Executive must have the power to issue an Ordinance as the Executive cannot deal with the situation by the ordinary process of law because the Legislature is not in session.[8] In the case of A.K. Roy v Union of India,[9] the Supreme Court has justified this condition with the term ‘urgent situations’. It is related to the term ‘immediate action’ which justifies the circumstances which need urgent attention to take immediate actions. The term urgent situations and immediate actions have no connection with the emergency[10]. Hence promulgation of ordinance is not dependent on the circumstances of ‘emergency’. In the case of T.Venkata Reddy v. State of Andhra Pradesh[11] the Court has observed that “The motive of the legislature in passing a statute is beyond the scrutiny of the courts. Courts can also not examine whether the legislature had applied its mind to the provisions of a statute before passing it. The propriety, expediency and necessity of a legislative act are for the determination of the legislative authority and are not for the determination of the courts.” Therefore the circumstances which make the promulgation of an ordinance necessary is a topic which should be decided by the Executive in its subjective satisfaction. But this satisfaction is non-justiciable or subject to judicial review and still a topic for open discussion. As the outbreak of novel, Coronavirus has taken the country to a complete lockdown situation and health professionals have turned out to be the prominent saviors. To ensure the security of the health professional the extraordinary situation demanded the president to immediate actions. Conclusion This article tried to analyze the constitutional validity of the recent Epidemic Ordinance issued by the president. The Ordinance provides for making acts of violence cognizable and non-bailable offenses and for compensation for injury to healthcare service personnel for causing damage or loss to the property of healthcare personnel concerning the epidemic[12]. Before this Ordinance Indian government was using the 123-year-old unamended act to tackle COVID-19, this age-old Act was falling short to deal with ongoing situations particularly in protecting health care personnel combating pandemic disease. Sensing the need for immediate action in the urgent situation, the President promulgated the Epidemic Disease (Amendment) Ordinance, 2020 which is constitutionally valid under article 123 as an ordinance which satisfies these pre-conditions has the same force and effect as an Act of Parliament. Although law made by this article is without the blessings of the legislation yet the relevance of this power is appreciated as it covers the long law making process in a single go. This is the only power which could effectively and efficiently initiate long pending reforms with the due assent of the president along with the council of ministers. As mentioned in the constitution the ordinance is a temporary law. So the parliament, of course, gets the chance to review the measure when the government seeks to introduce a bill to replace it. If an ordinance under this article makes any provision which Parliament would not under the Constitution be competent to enact, it shall be void.[13]But this would completely depend on the upcoming six weeks after reassembling parliament. In light of the current scenario, it was a much needed law justifying the deep-rooted solution to the problem of assaults on doctors and other medical staff. References: [1] The Epidemic Diseases (Amendment) Ordinance 2020, makes significant changes to the act, for a summary of these changes, see, The Epidemic Diseases (Amendment) Ordinance 2020, PIB, https://pib.gov.in/newsite/PrintRelease.aspx?relid=202493. [2] https://www.aa.com.tr/en/asia-pacific/doctors-in-india-hail-new-epidemic-disease-ordinance/1816684. [3] Vinod Sethi, ‘Press and the Parliament’ (1980) 41(4) Indian Journal of Political Science 657, 663. [4] (1982) 1 SCC 271. [5] Writ Petition (C) Diary No. 10795 of 2020. [6] AIR 1987 SC 1086 : (1987) 1 SCR 819 : (1987) 1 SCC 395. [7] DD Basu, Commentary on the Constitution of India, (9th ed, Vol 8). [8] VIII CAD, p 213, https://www.constitutionofindia.net/constitution_assembly_debates/volume/8/1949-06-13. [9] AIR 1982 SC 710 [LNIND 1981 SC 469]: (1982) 2 SCR 272 [LNIND 1981 SC 469] : (1982) 1 SCC 271 [LNIND 1981 SC 469] (para 16) (CB). [10]INDIA CONST., art. 352. [11] AIR 1985 SC 724 : (1985) 3 SCC 198. [12] Ministry of Health and Family Welfare, Press Information Bureau, https://pib.gov.in/newsite/PrintRelease.aspx?relid=202493. [13] INDIA CONST., art. 123, cl. 3. DISCLAIMER: Views and opinions as expressed in the Research Articles are solely of the author and any member of the core team of the website shall not be liable for the same.

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