Circumstances of emergency, spread of a pandemic disease

March 30, 2020.

by Anirudh Wadhwani

As of the time I am writing this article, there are 1,139 cases of COVID-19 virus in India, out of the approximate 11,000 tests conducted so far. The news from around the world points towards a much threatening future for the citizens of India. German Finance Minister, Thomas Schäfer’s, suicide after becoming “deeply worried” by the impact of this virus is one of such recent examples. Amidst all this, what is the truth behind those whatsapp forwards stating a probability of declaration of a National Health Emergency by the Parliament?

The provisions for dealing with pandemics in India are given in 2 major Acts. First being drafted 123 years ago; Epidemic Diseases Act, 1897, whereas the second being Disaster Management Act of 2005. On the other hand, grounds for declaration of emergency are given in the Constitution itself. In order to declare a national emergency, President of India must follow the Articles 352-355. These articles express the conditions for the proclamation of National Emergency in India. Earlier, before the 44th amendment act of the Indian Constitution, grounds for proclaiming a national emergency under Article 352 were; war, external disturbance and internal disturbance. Afterwards, by the amendment, the term ‘internal disturbance’ was changed to ‘armed rebellion’. But even after the amendment, Article 355 still contained the same term; ‘internal disturbances’. Article 355 places a duty on the Union government to protect all states against external aggression and internal disturbance, and ensure that the governance of states is carried on in accordance with the Constitution. Whereas, Article 353 includes the effect of proclamation of emergency and permits the central government to direct a state how to use its executive power, and the Parliament to make laws on matters from the State List.

The chairman of the Drafting Committee in the Constituent Assembly, Dr. Ambedkar had explained the underlying principle of Article 355 and stated that the Constitution, under provisions for emergency, provides the central government with some overriding powers and the use of that power or “invasion” by the center of the Provincial field (state). Therefore, introduction of Section 355, casting a duty on the Union to protect a state, was essential to prevent such unprincipled invasion. Also, as stated under the report of the Sarkaria Commission, “internal disturbances” has a broad scope and it can be nature-made also. Natural calamities of unprecedented magnitude such as floods, cyclones, earthquakes and epidemics may paralyze the government of a state and put its security in jeopardy. “Under Article 355, a whole range of action on the part of the Union is possible depending on the circumstances of the case, the nature, the timing and the gravity of the internal disturbance.”

Therefore, according to the Constitution, a health emergency being invoked by the centre, although not under Article 352 which deals with the proclamation of emergency on the grounds of war, external aggression and armed rebellion, but under the garb of internal disturbance stated in Article 355.

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