DECIPHERING THE NEED FOR INSERTION OF A HEALTH EMERGENCY PROVISION
[Co-Authored by Tanya Singla and Supriya Aggarwal, 2nd year law students at Punjab University, Chandigarh.]
The outbreak of the novel Coronavirus has left the world nonplussed with India at no exception. Apart from all other axiomatic challenges posed by it, the Coronavirus is, as said by Dr. Vivian Balakrishnan, foreign minister of Singapore, “an acid test of every country’s quality of healthcare, the standard of governance and the social capital.” In an attempt to analyse India’s performance in this triangle test, various staggering facts come to the surface. As per a report published by WHO, India stands at 184th position out of 191 countries in terms of the share of GDP spend on the healthcare with its government spending only 1.15% of GDP on the healthcare industry. On the other hand, in 2019, India was among top 3 military spenders in the world spending 2.4% of its GDP on defence. Secondly, the exodus of daily wage earners from their workplaces to their homes after the announcement of the nationwide lockdown points to the poor performance of India in the assessment of its social capital. It is pertinent to mention here that the social capital of a country refers to the trust its society poses in government and its compliance of rules.And the position is nothing better with reference to the third parameter, i.e. the standard of governance, with the Indian government having no modern and appropriate law at its beck and call to deal with the health crisis of such an unprecedented scale. Undoubtedly, there is no silver bullet to deal with such complex problems. But the insertion of a provision of the health emergency in our constitution will surely provide the government, both the union and the state, with armour to protect the citizens. And the job is not done and dusted here, to go the whole hog there would be a need of the appropriate sub-provisions to prevent India from failing in other two aspects, i.e. the standard of governance and social capital.
WHY DO WE NEED THIS PROVISION?
The citizens’ right to health and healthcare is recognised and promoted by the scads of international covenants to which India is signatory. Indeed, Indian delegation represented by Hansa Mehta, an educator and reformer, played a pivotal role in drafting Universal Declaration of Human Rights which explicitly recognises people’s right to health and healthcare in Article 25. The main point of concern here is that albeit we considered this provision of the Declaration important enough to articulate it in our constitution yet we put it under Directive Principles of State Policy with its various aspects being covered in Articles 39 (e), (f), 41, 42 and 47 which, merely being the guiding principles for the government to frame laws, are not enforceable through court. Though the Supreme Court of India has rightly set a precedent by making the right to health and healthcare an implied part of the right to life under Article 21 of the constitution through several landmark judgments yet, we opine, that the lacuna has not been completely filled. The Parliament has abdicated its responsibility of framing an adequate law for this purpose despite it being declared the fundamental right. With the Indian government resorting to archaic-colonial, inadequate and ineffective Epidemic Diseases Act of 1897, Section 144 of Indian Penal Code of 1860 and Disaster Management Act of 2005, it is an established fact today that all these manoeuvres of first putting this provision in DPSPs and then making it an implied right of the right to life have not yielded desired results. And this very fact necessitates the introduction of the health emergency provision in the constitution so that the government is equipped with the specified and constitutional provisions when faced with such a health crisis.
Secondly, the laws, currently at the disposal of the government, exemplify the aphorism ‘extraordinary times call for extraordinary measures’. But the fact that these extraordinary measures are not articulated or enumerated in these laws, especially in EDA, can provide an opportunity to the government to garner in its hands the extraordinary and sometimes the extra-constitutional powers. For instance, the Prime Minister of Israel, Benjamin Netanyahu, who is facing court cases for corruption and breach of trust, closed the judiciary and procrastinated his own trial. In Indian context, this accumulation of extraordinary powers may relate to the fundamental rights and liberties of people being set at naught. This anticipation is again based on the inadequacy of the currently prodded laws. For instance, EDA, 1897 underscores only the ‘powers’ of the government during the epidemic and is completely silent about its ‘duties’ in preventing and controlling the epidemic and the ‘rights’ of the citizens in an event of a significant disease outbreak. And the imposition of the disproportionate restrictions on the citizens’ rights and freedoms irrespective of the huge socio-economic diversity of the country and the government’s act of shifting its own duties of providing social security to the vulnerable citizenry onto the general public can be quoted as the instances of such extraordinary powers. On March 16, United Nations human rights experts also issued a statement expressing deep concerns with the way leaders were amassing power ostensibly for dealing with the pandemic. Hence arises the desideratum of the constitutional bars to such amassing of extraordinary powers. And in our opinion the emergency provision articulating the duties of the government and the rights of the citizens will surely serve the purpose.
Thirdly, the experiment of dealing with the scourge of current pandemic shows that such health crises must be addressed down to the local level where the state governments have a humongous role to play. Indeed the state governments are doing a tremendous job to fight the virus. Rajasthan government’s Bhilwara model; Delhi government’s ‘5-T’ strategy comprising of stringent testing, tracing, treatment, teamwork and tracking and monitoring; Andhra Pradesh government’s model of village secretariat system; Gujarat government’s three-pronged strategy of augmentation of the health infrastructure, priority to preventive measures and maintenance of food supplies, etc. are out of the best strategies to mitigate the challenges posed by this pandemic. But unfortunately, the quasi-federal structure of the government which places the union government at a better footing in terms of power than the state governments is acting as a stumbling block in the path of effective implementation of these policies. The state governments are grumbling about their inability to access funds and the union government’s delay in allocating the funds. These limitations demonstrate the dire need of introducing such provisions which may provide for the immediate decentralisation of financial and administrative powers. And the health emergency provision can really come in handy for this just as the provocation of national emergency centralises these powers.
1) If the President is satisfied that a grave emergency exists whereby the public health is threatened, whether by epidemic or natural calamity or environment degradation, he may, by Proclamation, make a declaration to that effect.
2) The restrictions on people’s fundamental freedoms should be resorted to only as the last option e.g. when there is no prophylaxis available to prevent the epidemic, etc. but these restrictions should not be hare-brained and precipitous as these were now. The government should be obliged to provide for those citizens whose livelihoods would be threatened by such curbs on their fundamental freedoms.
3) There should be a provision of making amendments in the annual budget of the concerned year when the proclamation of health emergency is in operation. This will allow the government to divert its resources towards acquiring the required paraphernalia to tackle the situation.
4) Owing to the fact that public health is a subject of state list and the experience that the state governments can perform better in dealing with such pandemics, there should be a provision of decentralisation of financial and administrative powers so that the state governments can work unhindered for the betterment of public.
5) While a proclamation of Health Emergency is in operation, the state governments should be empowered to ask the union government for allocating them a reasonable amount auxiliary to what already is due to them and it should be made mandatory for the union government to allocate such additional funds to the state governments. An established institution, say CAG, can be bestowed with a responsibility to corroborate, in the short span of one week, the reasonability of the amount demanded by the state government. This will facilitate the financial decentralisation to some extent.
6) There should also be a provision for the swift allocation of funds because the delay in doing so can impinge on the efficiency of the working of state governments.
To conclude, we could have dealt with this microscopic virus had we been prepared for this. Perhaps the original emergency provisions had been inserted in our constitution for such unforeseen situations only and the original phrase “internal disturbances” in Article 352 of the Constitution could surely take a microbe in its wide ambit. But as the phrase was deleted to give “armed rebellion” its place, we clearly faced the dearth of a constitutional provision to address an issue of such a great importance. The Parliament and the State Legislatures can and should definitely go for making the adequate and effective laws concerned with public health but the reason for our emphasis on the insertion of health emergency provision is that our constitution has been proved to be incomplete despite being one of the lengthiest constitutions of the world. Though the emergency provision alone cannot serve the purpose of dealing with such crises in future but we believe that it can be taken as the basis for formulating other related legislations.
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