When Covid-19 reached India, it created a situation of chaos and naturally the law had to jump in as an instrument for social control. It was a dangerous as well as an unprecedented situation and things needed to be controlled and channelled in the right way. This gave rise to a rather intriguing question, how much of control and discretion has to be given to the Government? & Where to draw the line?
Unfortunately, we had with us the Epidemic Diseases Act, 1897 (hereinafter, ‘EDA’) an archaic law which the colonial masters enacted in response to the bubonic plague of 1896. It was passed in such a haste that it is not at all comprehensive in nature and comprises of just four sections. The law is not a remedial one and was passed as a measure to control the ‘subjects’ over whom the colonial masters enjoyed their rights, powers and privileges. The history is important to point out because EDA is a pre-independence law that does not take into account the transformation of the people of India from ‘Subjects’ to ‘Citizens’. At this juncture, it is also pertinent to note that the Supreme Court has held in the case of Navtej Singh Johar vs. UOI that the doctrine of presumption of constitutionality does not apply in the case of a pre-independence law. Having mentioned this, now let me delve a little deeper and engage with some of the very fundamental flaws of the EDA.
THE ACT IS VAGUE AND DOES NOT PROVIDE CLARITY IN ITS APPLICATION
The EDA which aims to come into play at the time of an epidemic does not provide any definition for what will be considered as an ‘epidemic’. The words ‘dangerous epidemic disease’ have been used but there is no definition whatsoever in the act which may point out to the circumstances of its application. The judgement of an epidemic has been left completely on the subjective satisfaction of the government with no metric whatsoever.
The Supreme Court’s in the case of the State of Madhya Pradesh vs Baldeo Prasad, struck down the ‘Goonda Act’ for not giving the definition of who constitutes a Goonda in the first place. Likewise here is a parallel on the same lines that the EDA does not define ‘epidemic’ anywhere in the act. The law cannot operate in imaginary circumstances without any sort of clarity/guidelines as to that effect; this makes the law vague in nature.
The Supreme Court has imported the American constitutional doctrine of ‘void for vagueness’ in the case of Kartar Singh vs. State of Punjab wherein the court deliberated on vagueness as a ground for declaring a law void. The same was further relied on in the case of KA Abbas Vs. UOI by the Supreme Court. The EDA is very general and the worry is that almost anything can be moulded to fit into its frame. Aristotle once famously said that, “The Generality of Law falters before the specifics of life” and the ‘specifics’ of the human life is the eventuality, that’s at stake here!
EDA GIVES UNFETTERED POWERS TO THE EXECUTIVE AND IS DEVOID OF ANY CHECKS OR BALANCES
The EDA is purely administrative in nature and does not contain any mechanism as to the checks and balances. If a situation is so grave where there is a threat of dangerous disease/ infection, it means that the situation is bordering to that of an emergency like scenario. The important point of consideration here is that even the emergency provisions of the Constitution cannot be invoked arbitrarily so how can the provisions of the epidemic act? There is not a single section of the act which obligates the states or the central government to place the situation in the legislature or take any sort of a constitutional approval before acting. Neither there is a provision which provides for any restrictions on the acts of the government or places a limit. The law is liable to be misused without any regard to the fundamental rights of the public. There is an over breadth-ness which is at play here and the scope of the law is extremely wide. This invokes the Supreme Court’s precedent in the case of Shreya Singhal vs. Union of India in which the court looked at the over-breadth-ness of a law and transgression of fundamental rights (in the context of sec. 66A of IT act).
The constitutional landscape of the country is changing and the Courts have been expanding the scope of the fundamental rights. The epidemic act in question does in no way stands up to the contemporary constitutional standards. Section 2 of the Act empowers the state government to take “special” measures and prescribe regulations. What is amusing here is that no indicative measures have been provided in the act and the same has been left for the government to decide. This law practically empowers the government to act on its whims and fancies. With no regard for fundamental rights, I argue that the law in issue is not a shade but a shadow which needs to be struck down.
Governance is a cumbersome task and the same becomes more difficult in precarious times, such as the one faced by the country today. What is constitutionally unacceptable is a scheme where there is a complete erosion of accountability. The quote of Justice William Douglas of the US Supreme Court is very apt in the present times (1951).
“Where discretion is absolute, man has always suffered. At times it has been his property that has been invaded; at times his privacy; at times, his liberty of movement; at times, his freedom of thought; at times, his life. Absolute discretion is a ruthless master. It is more destructive of freedom than any of man’s other inventions.”
Although it is a fact that discretion is a tool for individualisation of justice but at the same time it must be remembered that ‘absolute discretion’ is a road to constitutional blasphemy. The time has come for the legislature to shun the EDA. A new law must be enacted that is orderly as well as constitutionally just, fair and reasonable!