India’s administrative response to the Covid-19 pandemic has largely been under two enactments: the Disaster Management Act, 2005 (the “DM Act”) and the colonial Epidemic Diseases Act, 1897 (the “1897 Act”). The DM Act is a detailed statute containing an elaborate framework for disaster management, with significant guidance on how administrators at all levels of the Indian administration (national, state and district) are to function and coordinate in disaster management. The 1897 Act, on the other hand, is an extremely short statute (with a total of just 4 sections), that is aimed at the prevention of the spread of dangerous epidemic diseases. In terms of legislative guidance to administrators, the 1897 Act offers almost nothing. To put it mildly, the 1897 Act is a carte blanche to government and an administrative law nightmare, allowing authorities to act with almost uncircumscribed authority.
To give just one illustration (many more can be given), Section 61 of the DM Act specifically incorporates a “prohibition against discrimination” and requires that “while providing compensation and relief to the victims of disaster, there shall be no discrimination on the ground of sex, caste, community, descent or religion.” This is explicit statutory recognition, that even in the extreme circumstances of a disaster occurring, the government is obliged to adhere to the “non-discrimination principle”. In contrast, no such safeguard is provided under the 1897 Act, and we are forced to fall back upon constitutional language to argue for non-discrimination and fend off specious arguments about how “exceptional circumstances” of a pandemic justify non-adherence to anti-discrimination norms. Scholars such as Farrah Ahmed and Swati Jhaveri have argued here for reclaiming “Administrative Law” from our tendency to over-constitutionalize public law disputes. One way such reclamation could be done is to make the best use of legislative guidance in holding administrative action accountable, when such guidance is available.
Despite the obvious benefits of the DM Act framework, some commentators have questioned its invocation and applicability to the Covid-19 crisis. These include Gautam Bhatia in his post on the Verfassungsblog here and Devansh Kaushik in his post on this blog here. These attacks have a context, even if they are completely unsubstantiated in the law, and stretch credulity. The context is this. These two legislations differ in one significant way: the 1897 Act allocates most power to the State Governments, with a very limited role to the Central Government. In contrast, the DM Act shares powers and responsibilities amongst the various levels of government, with a more dominant coordinating role envisaged for the Central Government. There have been genuine concerns that the appropriate administrative response to the pandemic must be federal and state-led, and not top-heavy or centralised. Naturally, this has political implications as well, given that many state governments are run by political parties inimical to the ruling party at the Centre. However, such concerns, no matter how valid they may be, ought not colour interpretation of manifestly clear provisions of law. I will demonstrate just how worrying these claims are below.
The DM Act’s definitions
First, some definitions. The DM Act applies to disasters. Relevant definitions in that statute which determine its applicability to the Covid-19 crisis include “affected area” and “disaster”. These state as follows:
“affected area” means an area or part of the country affected by a disaster.” (emphasis supplied)
“disaster” means a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man-made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area; (emphasis supplied)
In the interest of brevity, I am not going to labour here on how the Covid-19 crisis lends itself to the ordinary meaning of the terms “catastrophe”, “mishap”, calamity” or “grave occurrence” or that it has resulted in “substantial loss of life” and “human suffering”. It would require the most obtuse of characters to seriously contest that these elements of the definition stand satisfied.
The Questions raised about the DM Act’s applicability
The entirety of Bhatia’s “questioning” on his post in the Verfassungsblog in relation to this question of applicability of the DM Act, in his own words, is as follows:
“State action in the context of Covid-19 has been initiated at three levels, with some degree of overlap. First, let us turn to the central government. On the 24th of March, the central government invoked the National Disaster Management Act. The invocation of this law is questionable, as it was enacted in the wake of a natural disaster, and was evidently not intended to deal with public health emergencies or pandemics (this is evident from its provisions, which envisage that specific areas of the country may be declared as disaster-hit, for the Act to apply).” (italicised emphasis in original)
He then proceeds to lament that this “questionable” invocation of the DM Act:
“centralizes the sphere of operations, giving the federal government overriding powers of enforcement, despite the fact that under the Indian Constitution, public health is a topic normally dealt with at the level of the state governments.”
Bhatia does not appear to question the applicability of the 1897 Act. Kaushik’s post echoes similar, if less trenchant, concerns. In addition, Kaushik asserts that the 1897 Act is “more oriented to the crisis”. As I note above, an objection to the centralisation of power seems to be at the root of the concern. This is a valid political concern. Unfortunately, it needs to find expression in ways other than to take our DM Act and put its “language into a rack and torture it into a shapeless mass.” (I borrow this colourful expression from Bhatia himself, which he uses in one of his many posts analysing the Supreme Court’s judgments here).
A keen observer would notice that Bhatia offers scant legal argumentation to question the DM Act’s applicability. Indeed, one must work hard to discern an argument. From the italicised emphasis on the words “natural” and “areas”, I infer his argument to have two conjunctive limbs: (i) firstly, the fact thatthe DM Act was enacted “in the wake of a natural disaster” is somehow relevant in curtailing its applicability to the pandemic; and (ii) secondly, the fact that the DM Act’s “provisions envisage that specific areas of the country may be declared as disaster-hit for the Act to apply” somehow “evidently” leads us to conclude that the Act was “not intended to deal with public health emergencies or pandemics.” The leaps of logic here are startling.
There is a third limb which I will deal with immediately. Bhatia alludes to “public health” being a State List subject. What he does not mention is that the Union List allows the Parliament (i.e., the Centre) to legislate on “Port quarantine, including hospitals connected therewith” (Entry 28, List I, Schedule VII, Constitution of India) and that the Concurrent List allows it to legislate for “Prevention of the extension from one State to another of infectious or contagious diseases” (Entry 29, List III, Schedule VII, Constitution of India). To argue that Parliament lacks legislative competence to deal with the spread of pandemics is a non-starter.
The first limb of the argument is bewildering. Bhatia is suggesting that the immediate factual trigger for enacting a statute is relevant in a way to curtail the plain meaning of its words. This is clearly contrary to established canons of statutory interpretation that privilege a statute’s plain meaning when it is clear. It is like saying that the assassination of Archduke Franz Ferdinand defined and limited what World War I was about. Given Bhatia’s emphasis on the word “natural” in “natural disaster”, I infer he means that somehow: (i) the Covid-19 pandemic is not “natural” in some way; and (ii) that because it is not “natural”, it cannot be a “disaster” within the meaning of the DM Act. But surely this is barking up the wrong tree, given that the definition of “disaster” in the DM Act specifically refers to “a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man-made causes, or by accident or negligence.” True, some such as Kate Brown in The New Yorker, have argued that the Covid-19 pandemic is not a “natural disaster”. However, even Brown clarifies precisely what she means by that when she states as follows:
“zoonotic diseases can seem like earthquakes; they appear to be random acts of nature. In fact, they are more like hurricanes—they can occur more frequently, and become more powerful, if human beings alter the environment in the wrong ways.”
This view holds that zoonotic diseases can be partly caused or accentuated by the effect of the actions of human beings on the environment, i.e., a combination of natural and man-made causes. This sort of distinction is surely not legally salient in the context of India’s DM Act because that statute’s definition of “disaster” is explicitly clear that it would cover also events that have “man-made causes”.
The second limb of Bhatia’s argument is even more bewildering and is manifestly, at least partly, a non-sequitur. He states that because the DM Act applies only to specific areas that are to be declared as disaster-hit, this is evidence that the Act does not apply to “public health emergencies” or “pandemics”. Bhatia is therefore now suggesting that the fact that a statute has geographical limits (whether contained in the statute itself or to be prescribed later by delegated acts) somehow controls what the statute deals with, in substance. This is manifestly absurd. To give an equally absurd analogy, this is akin to suggesting that merely because the Indian Penal Code (the “IPC”) will apply to all of India but Kashmir (the premise containing a geographical limitation), the definition of “rape” under the IPC will not include “marital rape” (the supposed inference on a matter of substance).
But again, let us stay with the argument a little further. Clearly, the second limb of Bhatia’s argument makes little sense in asserting that DM Act is inapplicable to “public health emergencies”. Let us assume that this was an inadvertent slip. But what about “pandemics”? Does the second limb make any more sense with respect to “pandemics”?
To understand this, we need to understand the difference between an “epidemic” and a “pandemic”. Indeed, there is a significant difference between these two terms in terms of their connotation for the geographical spread of a disease. I refer to from an easy-to-access source in lock-down times, the “Dictionary.com” website, which has a useful article explaining the difference between these two words. Both “epidemic” and “pandemic” have etymological origins in the Greek “dêmos” meaning “people of a district.” However, an “epidemic disease” is “affecting many persons at the same time, and spreading from person to person in a locality where the disease is not permanently prevalent.” In contrast, a “pandemic” is an “epidemic that has spread over a large area, that is, it is prevalent throughout an entire country, continent, or the whole world.”
Thus, perhaps, Bhatia and Kaushik’s argument could be that if a disease graduates from an “epidemic” (i.e., contained in a localised “area”) to a “pandemic” (spreads to the entire country), then the DM Act would no longer apply because of its emphasis on disaster-hit “areas”. But if this were the case, then logically, the 1897 Act which deals with only “epidemics” and not “pandemics” will also cease to apply. Bhatia raises no such objection to the 1897 Act and Kaushik, as I have noted, states explicitly that the 1897 Act is the more appropriate legislation to invoke. Clearly this leads us to logical inconsistency.
Furthermore, as noted above, the DM Act defines “affected area” to mean “an area or part of the country affected by a disaster”. It says nothing about whether the area or part is “large” or “small”. Thus, evidently, disasters affecting larger areas or parts of the country are included. If this is so, it defies common sense to suggest that disasters impacting the entire area of the country are not included.
Previous Administrative Interpretation of the DM Act
The claim that the DM Act does not apply to “public health crises” or “pandemics” also belies how the statute has been previously interpreted by both the Central Government and the State Governments, as well as its legislative history. When the enactment was still a Bill being debated in Parliament, it was studied by the Parliamentary Standing Committee on Home Affairs. That Standing Committee Report, accessible here, specifically rejected a suggestions to restrict the definition of the term “disaster”. Paragraph 5.7.0 of the report states:
“5.7.0 Another Member pointed out that the term ‘substantial’ used in the definition of “disaster” is vague an suggested for Improvement of the definition of “disaster”.
5.7.0 The Ministry has responded by stating that the definition is appropriate, as specific disasters have not been indicated separately. The definition covers any calamity natural or man-made, which satisfies certain parameters which includes substantial loss of life or human suffering or damage to and destruction of property or damage to, or degradation of environment.”
As early as 2008, the National Disaster Management Authority, issued the “National Disaster Management Guidelines” under the DM Act, accessible here. This contains an entire Chapter 4 on “Biological Disaster Management” and a sub Chapter 4.6 on “Pandemics”.
Further, the DM Act, as enacted, also envisages the formulation of “Disaster Management Plans” at both the Central and State levels. These plans have been formed after public and administrative consultation. The National Disaster Management Plan released in 2016, accessible here, specifically envisages both man made “biological disasters” (see paragraph 1.9) and natural “biological hazards” as a subset of “natural hazards” meaning “process or phenomenon of organic origin or conveyed by biological vectors, including exposure to pathogenic micro-organisms, toxins….” and reference is also made to “Epidemics: viral, bacterial, parasitic, fungal or prion infections” (see paragraph 1.9.1). It is important to note that several states have adopted similar State Development Plans. In my limited survey, I was unable to find any State that had pushed back against this in any meaningful way. In fact, as reported here, one of the first actors under the DM Act in relation to the Covid-19 pandemic, appears to have been the Kerala State Government which, as early as February, issued an Order under the DM Act declaring the Covid-19 disease outbreak as a “State Calamity”.
To sum, the DM Act does apply to the Covid-19 pandemic in India. Everything points to its applicability. Its invocation by the Central Government, per se, is unexceptionable. The claims that the government is acting only by “executive decree” with no legislative basis are therefore suspect. This is not to say that the Governments’ actions are all legally sustainable. The real task for administrative law scholarship in India is to discern legislatively prescribed guiding principles enacted by the DM Act and accurately hold the governments to these standards. This, clearly, is a difficult task and needs much more than a blog post.
Goutham Shivshankar is an Advocate-on-Record at the Supreme Court of India
One thought on “Goutham Shivshankar: Debating the Applicability of India’s Disaster Management Law to COVID-19”
I would first like to thank Mr. Goutham Shivshankar for engaging in this debate on the Government’s response to COVID-19, specifically with what I and Mr. Gautam Bhatia have written on the subject. While I cannot speak for Mr. Bhatia here, I will attempt to defend my arguments point by point.
In my first post (written 21 April), I first dealt with the legal basis of the government’s response, tested the delegated legislation using admin law principles as per judicial precedents and ended with the conclusion saying that a fresh legislative framework was needed.
I stand by my earlier arguments for the following reasons
– Mr. Shivshankar first states that despite the obvious benefits of the DM Act framework, some commentators including myself have questioned its invocation and applicability to the Covid-19 crisis. I would like to clarify that I agree with the invocation of the DM act only to the extent of which it provides an initial administrative set-up needed by the government but not its use for imposing substantial obligations and restrictions on constitutional rights, not envisaged by the statute itself, as apparent in my post.
– Mr. Shivshankar then goes on to give a context to such attacks, referring to federalism aspects. While that has been a challenge by other commentators, I did not analyse that aspect in my piece and didn’t offer any opinion. Though I agree with Mr. Shivshankar when he says it is political concern and that there are relevant items in all 3 lists in Schedule 7, empowering both state and central governments.
– Regarding the applicability of the DM Act, I concur with Mr. Bhatia when he refers to the language of the statute, to the extent of its geographical connotations, to argue that the present crisis may not have been envisaged by the statute. By this I do not imply that a health epidemic cannot be included by extension. As Mr. Shivshankar pointed out it can easily be included as an ‘calamity’ as per the definition in the act. Now whether it is of Artificial or natural origin is immaterial for the interpretation of the act, and I draw no such distinction in my post.
– However the fact that a ‘public health crisis’ or ‘epidemic’ is not expressly included in the act (unlike the disaster statues of other jurisdictions) does create a presumption against the legislature having considered the distinct intricacies involved in dealing with an epidemic, rather than a conventional disaster. The responses required are vastly different, compared to say an earthquake or flood.
– My argument also had a second distinct prong along the lines of the ‘scale’ of the epidemic. Even if an epidemic is read into the act as a disaster, the act was not meant to cover an enduring disaster encompassing the entire country. The ‘geographical limits’ as Mr Shivankar argued indeed do not define the substance of the disasters covered by the act as excluding an epidemic, but they do indeed at least indicate the scale of an appropriate government response envisaged by the legislature under the act.
– The reason this ‘scale’ matters, is that it makes it questionable whether the legislature foresaw the application of the act to extent to total movement restrictions, a complete shutdown of public transport and entire industrial sectors, and some of the radical measures being imposed on private parties such as moratoriums on rent, compulsory payment of wages and free testing. In my humble opinion, had executive actions of such scale been considered, there should have been guiding principles laid down in the act, which are absent. The government cannot take such substantial measures as delegated legislation, which haven’t even been remotely envisaged by the legislature.
– When Mr. Shivshankar ventures to guess that “Bhatia and Kaushik’s argument could be that if a disease graduates from an “epidemic” (i.e., contained in a localised “area”) to a “pandemic” (spreads to the entire country), then the DM Act would no longer apply because of its emphasis on disaster-hit areas”. I beg to differ that I intend to make no such distinction. For me the nature of the disaster as an epidemic and its scale as nation-encompassing, are 2 distinct prongs of my argument and are not mutually dependent. I would also like to point out that the NDMA guidelines defines a ‘pandemic’ as a continent or world-wide spread, not a single country.
– At this point, I would also to appreciate a compelling counter-argument that Mr Shivshankar makes, that there are 2008 Guidelines and a 2016 National Disaster management plan, which do foresee an application of DMA to an epidemic. However, this does not dislodge my argument, as these are post-facto executive produced documents with no legislative involvement (thus bereft of any consultation or deliberation benefits), providing only broad vague guidelines, devoid of context and ignorant of a rights framework. They are not legally binding and cannot be used to infringe on constitutional rights.
– For instance – there is no mention of the word ‘quarantine’ in the 2016 National Plan. While interestingly, the 2008 guidelines themselves refer to The Public Health Emergencies Bill being drafted at that time by MoH&FW, as “intended to replace the Epidemic Diseases Act, 1897 and provides for effective management of public health emergencies”, which unfortunately did not see the light of the day. The drafters of the guidelines would thus probably agree with me that the DMA alone was never meant to be enough to cover epidemics.
– When I described the EDA Act as “more oriented to the crisis”, I was referring to the fact that it was at least drafted expressly keeping in mind an ‘epidemic’. I stand by my earlier stance, that this pre-constitutional, colonial statute is still woefully outdated and too limited to deal with the present crisis comprehensively.
– There is thus no logical consistency when I argue that the DMA which while having a comprehensive administrative setup did not envisage an ‘epidemic’ as a disaster and the Epidemics act which did, lacked the required detail.
– However, I do not use the above stance to argue that all delegated legislation under these acts are not per se legally sound, I restrict my criticism to testing them on the basis of administrative law principles like proportionality as upheld by judicial precedents.
– As pointed above, there are enough inconsistencies in the application of both the DMA and EDA act, which warrant from a public policy perspective at least, for India to enact a special temporary legislation (following the example of UK, Singapore etc) specifically tailored to the present crisis. The substantive relief measure which are currently being passed off as delegated legislation should be enacted in this manner with active involvement of the legislature across the political spectrum, for the sake of sound law-making.
I reiterate my gratitude to Mr. Shivashankar for his engagement. I hope this exchange contributes to the academic discourse on the subject.