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COVID19: An opportunity for the legal reforms

Here I will discuss certain reforms in the legal system to deal with emergencies like COVID-19. COVID-19 also draws our attention to the chances of biological war.

Beginning with constitution this pandemic makes the case for bringing the Public Health under the concurrent list of the Indian constitution (it will enable both parliament and state legislature to frame law on the subject.) and in future if any untoward situation like this pandemic will arise then, it will be easier to frame a nationwide policy.

Now, A comprehensive legal enactment is necessary to deal with any such inevitable emergency. Every other democracy of the world whether UK or USA have already enacted the legislation to deal with any such situations. It is not that Indian Parliamentarians never thought of enacting any such legislation.

In 2017 Public Health (Prevention, Control and Management of Epidemics, Bio-terrorism and Disasters) Act was brought in parliament but due to some unascertained reasons, it was not passed. This law has comprehensively dealt with all the aspects relating to any emergency like this pandemic. It has explicitly defined certain terms such as isolation, quarantine, biological war, pandemic and other necessary terms.

Under section 3 of the draft bill, all the state governments and local administration are authorised to make rules for the time being. The Central government is authorised under section 4 to issue guidelines. Penalties have been differentiated on two grounds viz. Penalty for the negligent act (punishable with fine) and a penalty for the malignant act (punishable with a fine and in case of repeat offenders it may extend to a punishment of 2 years).

Constitution of appellate authority has been permitted under the act, and offences are made compoundable.

This legislation of 2017 is detailed one but now since we are facing the crisis, we have become more familiar with the ground realities that will arise in future, so here I am suggesting certain more provisions that are required to be included in the law:
  • There must be a provision for a National authority for Pandemics having persons with special knowledge in public health, police department and other concerned Researches.
     
  • It must be explicitly provided that the person punished for the negligent act, no disqualification shall be attached, as is the case with children in conflict with law under the Juvenile Justice Act, 2015. Otherwise, it will harm the prospects of the offender. E.g. if a boy of 20 years violates rules under that law negligently, he will thereby be debarred from contesting in any government exams or applying for a passport.
     
  • The necessary amendment should be made to protect the front-line public officers as is done by an amendment in the Indian Epidemic Act through the ordinance.
    • Since we are in the world with technologies, proposed Act must include stringent punishments for dealing the problem of fake news and rumours, this can also be done via amendment in IT Act, 2000.
     
  • All the Proceedings must be adjudicated in time bound manner by an Independent Tribunal.
     
  • Lord Acton quoted Power Corrupts and Absolute Power Corrupts Absolutely So During any Such emergencies when vast powers are vested in public officials their accountability needs to be fixed explicitly in the legislation itself.

Besides this, after the pandemic, there is a need for a nationwide database of labours. Awareness should be created among the labours for their registration in that database and law must make it compulsory for the owners of the enterprises to register the labours.
This will serve the dual purpose:
  1. If any emergency as this pandemic will happen in future this database will make it easy for the governments to identify who is in need and thereby policy will be framed accordingly
  2. It will augment the effort of the government to convert the informal sector into the formal sector.

One of the major components of the administration of Justice is access to justice, and COVID-19 has provided an opportunity for Indian courts to connect virtually via video-conferencing and other electronic means. It was a long-pending reform which becomes possible due to COVID-19.

Now an encyclopedic guideline is necessary to continue this virtual court functioning. After the crisis, courts will be flooded with the business litigation (especially cases of cheque bounce and invocation of force majeure clause or doctrine of frustration). An alternate dispute resolution mechanism must be prepared at the earliest by the courts and government to deal with it.

While I am writing this article, the Central Government has extended the lockdown for 2 more weeks with certain relaxations while segregating the entire country into three zones that are red zone, orange zone and green zone. Till then, stay home and stay safe.

End-Notes:
  • You can also visit my blog: https://neye1603.blogspot.com
  • You can access the draft of Public Health Bill, 2007 here: https://www.prsindia.org/uploads/media/draft/Draft%20PHPCM%20of%20Epidemics,%20Bio-Terrorism%20and%20Disasters%20Bill,%202017.pdf

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