COVID not part of Disaster Management Act: Liberties restored; Restrictions that stay

The Centre revoked DMA 2005 orders for COVID containment measures. Read this article to learn more about the liberties & restrictions.

In lieu of the overall improvement in the COVID 19 situation, the National Disaster Management Authority (NDMA), on 23 March 2022, decided to revoke provisions of the Disaster Management Act 2005 for COVID containment measures. Accordingly, after the expiry of the existing Ministry of Home Affairs (MHA) orders dated 25 February 2022, no further order has been issued by the MHA.
 

Rights bestowed upon the Government by invoking Disaster Management Act


The Disaster Management Act was invoked by NDMA to issue orders and guidelines for containment of the COVID 19 pandemic.  The Central Government included the COVID 19 outbreak as Notified Disaster, as a critical medical condition or pandemic situation, under Sections 6 and 10 of the Disaster Management Act 2005 (DMA) so that the entire country would have uniform lockdown regulations, which are easier to implement, especially with regard to services and functions that are to be allowed and not. For instance, before the national lockdown was enforced under the law, state specific lockdowns and a lockdown of 82 districts by the federal government - both under the Epidemic Disease Act - were inconsistent about the use of private vehicles. Under DMA, states are required to implement the national plans.

Further, in its attempt to monitor and control the ongoing pandemic situation, the Government resorted to several technologies such as smartphone applications, drones, etc. While drones were deployed in select areas to monitor quarantine compliance, every citizen was required to mandatorily download the Aarogya Setu app which was not only linked to their mobile number but could also track their location, contacts, and COVID-infection status via bluetooth. While these were requisite resorts at a security level, the measures were also in direct contravention of the citizens’ right to privacy.

The right to privacy was declared a fundamental right envisaged under Article 21 (right to life and personal liberty) of the Constitution of India. In the landmark Puttaswamy case of 2017, the Supreme Court laid down three tests that the State needs to fulfil in order to restrict someone’s right to privacy. The tests demanded the State must:

  • have a legislative mandate,
  • pursue a legitimate state purpose,
  • employ such restriction in a proportionate manner.

Further, in the Puttaswamy case of 2018, the Supreme Court passed instructions to enact a data protection law. However, the Aarogya Setu app not only misses the tests of reasonable restrictions but is also misplaced in terms of data protection. Thus, more than rights, the app bestows powers upon the Government to monitor and regulate the movements of citizens during the pandemic.

Apart from this, the National Disaster Management Act empowers the State to deal with all kinds of disasters and allows it to take action against any government official or company directors if State orders are defied. The Act further authorizes the State to detain a person without a warrant and even develop national and state-level mitigation plans with a clear chain of commands.

Revoking the Disaster Management Act


The Ministry of Home Affairs (MHA) has ordered the states and the Union Territories to discontinue the issue of orders and guidelines under the DMA. The MHA order further states that over the last 24 months, significant capacities have been developed for various aspects with respect to managing pandemics, such as diagnostic surveillance, contact tracing, treatment and vaccination, hospital infrastructure; and that the public has a much higher level of awareness on COVID appropriate behaviour. It further notes that the states and Union Territories have developed their own capacities and systems and implemented their detailed State / Union Territory specific plans for managing the pandemic over the last seven weeks.

What could be the consequences of such a step?

As seen in the past two years, the spread of coronavirus tends to spike during March after Holi as it does at other times of the year after a festival. Plus, there's a fresh surge in COVID 19 cases around the world - infections are rising in the United Kingdom and parts of Europe, where COVID restrictions were recently lifted. China and Hong Kong are seeing their largest spike in cases in more than two years even though they have not revoked their COVID restrictions yet.

In India, although the DMA 2005 orders have been revoked, the Centre has cautioned the states and Union Territories against the unpredictable nature of the coronavirus and have asked them to remain vigilant even though the DMA orders have been revoked for containing COVID. It has been communicated that whenever any surge in the number of cases is observed, the states and Union Territories may consider taking prompt and proactive action at the local level, as advised by the Ministry of Health and Family Welfare (MoHFW) from time to time.
 

Lifting restrictions and restoring liberties


The pandemic and the enforcement of the Disaster Management Act brought in force stringent measures demanded by the situation. But experts have opined how people were worried about restrictions on meetings and movement, which took away the freedom of association and posed a restriction on liberty. However, they have also pointed out how these liberties, even though abrogated during the pandemic, were never absolute in the first place.

Further, although there were restrictions in place, people in the country did find out means to avoid them. For instance, the Government constantly warned the people not to post unverified or unreliable information about the virus, the treatment, or the drugs. The very fact that such warnings were issued highlights the existence of these practices. Then again, false information such as ‘incorrect self-test guides’ were being shared on social media that posed a threat to society in general. While no laws were put in place to cover the spread of fake news during the pandemic, people were constantly apprised of relying only on Government sources and the World Health Organization (WHO) for all COVID-related information.

Speaking in general, several other liberties curtailed were to do with the restrictions issued on mobility rights. These include, but are not limited to, the liberty to visit gymnasiums, libraries, malls, restaurants, and the freedom to worship communally. Regarding the freedom to worship, we all remember the backlash received by the attendees of the Kumbh Mela, a holy month-long festival celebrated in North India. While the festival did receive a lot of flak, it also seeded COVID across the nation, breaking social distancing rules and other preventive measures laid down by the Government.

Restrictions on business and movement, however, affected a large segment of people behind the bars. With the courts closing during the peak-pandemic season and restrictions on physical hearings, several cases stood impending thereby delaying trials and curtailing the right to timely justice.

Another segment that has suffered miserably during the pandemic and more so due to the Government’s orders to stall construction work, daily-wage occupations, and other occupations of the unorganized sector (e.g., domestic work), is the case of migrant workers in India. While these workers were deprived of wages, their constitutional rights to food and shelter were abrogated without just notice or compensation by the Government. Even though several workers had to march barefoot to their hometowns, the lack of finances became a hindrance against their fight for survival. Upon revolts and demands for safe passage to their home states, the workers were met with police actions while Indian tourists, students, and other citizens were flown back to the country against Government expenses. These actions of the State violated the migrant workers’ rights to reside in any part of the country, move freely in any part of the country, and the soul of all rights - the right to equality.

With the Central Government’s decision to revoke the Disaster Management Act, several of these restrictions have been lifted. State governments are discussing the impact of the revocation, and how they can ensure ease of doing business and living without restrictions. In fact, the Government of Maharashtra is already planning to do away with VAX-certifications for traveling and visiting public places like malls, multiplex, beaches, etc.

Some crucial and indispensable rights that have been restored by the Government on account of the ‘Atmanirbhar Bharat’ scheme include:
  • Right to Freedom of Movement: With the lockdown lifted and COVID cases being under control, flight and other travel restrictions were lifted by the Government.  With this freedom restored, citizens can now travel inter-state and even overseas. This has allowed citizens to explore opportunities for work and studies alike. Further, the right to freedom of movement has facilitated the movement of goods and non-essentials from one place to another, thereby empowering businesses and e-Commerce sectors in India.
  • Right to Freedom of Profession, Trade, or Occupation: The first wave of COVID had the world at its feet, even economically. As a result, several industries faced pay-cuts, employees were laid off, and other industries and occupations such as the film industry and migrant workers had to completely stall their projects. However, with this freedom restored and the economic curve moving upwards, several businesses and employees have found their balance and refurbished their right to livelihood.
  • Right to Freedom of Religion: With the rise in COVID cases and retaliations against the Kumbh Mela and the Tablighi Jamaat, the right to freedom of communal worship was curtailed by the Government. All places of religious significance were locked out for citizens, restricting them collectively of mobility and worship rights. While the rights were restored earlier, revocation of the Disaster Management Act has lifted further liberated the citizens to organise and partake in communal reverence towards their faith.
  • Right to Freedom of Association: While the Disaster Management Act did not put any direct restriction on the freedom of association, it was restricted through executive orders passed under Section 144 of the Code of Criminal Procedure (CrPC) read with the addendum issued by the Home Ministry. With the Government revocation of the Disaster Management Act, the power of the Government to issue such orders has been curtailed and is limited to its original extent (urgent cases of nuisance, apprehended danger, and potential damage to human life and property).
  • Right to Healthcare: While several restrictions were put in place by the Government to curb the spread of the COVID virus, the right to healthcare also saw some restrictions from government and private hospitals. During the first phase of the pandemic, when COVID was at its peak, people were advised to stay at home and book online medical consultations and medicine deliveries. Private hospitals did not entertain non-COVID emergencies and did not attend to patients suffering from common cold or flu without COVID-positive reports. However, with declining cases and adjusting to the new normal, patients have the liberty to choose between online consultations and hospital visitations. Emergency cases regarding non-COVID health emergencies have also been allowed, providing much relief to the citizens.

Conclusion


Although it has been clarified that COVID is no more classified as a national disaster in India and that the Union Government will not issue further directions to the states as part of the national plan under DMA to deal with the pandemic, it is important to note that the state governments will be at liberty to take appropriate steps under the other provisions of the law, including the Epidemic Diseases Act, 1897 in case there is a sudden outbreak or threat of an outbreak of COVID 19 again.

States are still empowered, under the Epidemic Diseases Act, to prescribe regulations related to the inspection of persons travelling from other states, for segregation in hospitals, temporary accommodation, or inspection of persons suspected by the Inspecting Officer of being infected with any such disease.

Further, state governments can regulate the operation of various public institutions such as malls, gymnasiums, cinema halls, conference halls, etc. in their regions as preventive measures to contain the infection or in situations of public health emergencies.

In conclusion, one can note that the rules of mandatory masking and social distancing will transition from law-backed guidelines to Government-issued advisories. Further, even when the Disaster Management Act for COVID containment measures was in force, several other restraints like regulating medicine prices and hospital costs were imposed under the Epidemic Diseases Act. The revocation of the Disaster Management Act will have no impact on these restrictions.