Emergency Health Power: About Time To Legislate
INDIAN LAWS: UNDEFINED AND TROUBLESOME
Per the Constitution of India, the public health deals with generally as a matter of state and not central policy. Despite this, the Union government has declared it as a ‘disaster’ under the National Disaster ManagementAct,2005 This move, empowers the Central government to issue binding orders to states in the wake of a disaster. The states, on the other hand, have been directed to peruse the Epidemic Diseases Act, which, according to constitutional law expert Gautam Bhatia, has a sordid history. Much lower in terms of this hierarchy comes the police force, where the high-ranking officials can issue orders restricting the individual movement. This power is vested by the Code of Criminal Procedure. Regulatory powers, therefore, are oxymoronic in that they are both centralized and decentralized. Such inconsistent and unchecked powers are highly susceptible to abuse and may consequentially result in the infringement of a citizen’s civil liberties.
Policy: Why change now?
COVID-19, though globally devastating, has, much like any other emergency, succeeded in creating a need for stronger laws. It has provided India with an advantage like no other, to make favorable updates in state policy which will equip our country to wade through future emergencies. In circumstances like these combined with a population of a whopping 1.3 billion, India’s legal preparedness in its public health systems is imperative. Judicial checks on legislative and executive power during emergencies must be present and legislative gaps have to be filled, to avoid turning turtle.
For ease of reading and briefness, the suggestions are enumerated below. This list of suggestions is not meant to be exhaustive in any manner.
Upon a plain comparative reading of all 5 nations’ slightly botched plans, one thing can be stated with certitude. India and the Global Best have a dearth of transparency, and therefore, accountability, in their laws. To enable this, we require a system that imposes responsibility on public health officials and other statesmen.
The movement of persons during lockdown must be heavily regulated. In order to ensure compliance, temporarily enforcing criminal liability upon offenders is an option. This measure must be stringently implemented and must not be a one-off resort. But such implementation cannot violate constitutional guarantees like civil liberties.
Accordingly, transport permits and other work arrangements must be clearly demarcated and procedures to obtain the same, amply publicized. Essential services must be defined and made available through both state and private entities.
As a general matter, the emergency health procedures which involve the entire nation must contain a separation of powers which enlists the duties and jurisdictions of the union and state government. Arbitrary powers, if vested in officials down in the hierarchies must be subject to judicial review as is the case in normal executive discretion.
Other miscellaneous provisions providing for proper pricing and buying and selling of essential items, temporary regulations for compulsory licensing thereby deterring anti-competitive behavior, must also be included.
Police powers must be reasonable and unambiguous. Hospital policies and general medical plans that might be counterproductive must be halted.
India’s situation, at the time of writing, is very precarious. It might seem to us on the outside, bright with little avenue for failure. But that is certainly not the case. One can only hope that COVID-19 serves as an eye-opener to the governments, policymakers, and the people of both the present and the future. Availing prisoners with parole or bail must be considered in exceptional and acceptable circumstances with appropriate and uncomplicated procedural formalities.
ABOUT THE AUTHOR:
Mahathi.U, 2nd year BA LL.B (Honours) from The National University Of Advanced Studies, Kochi and Edited by Vijayalakshmi Raju.
You can contact at https://www.linkedin.com/in/mahathi-utham-7b737227/
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