In the zeal to deal with the Covid crisis, the Constitution and the law often go unnoticed. The role of the governments at the Centre, in the States and at local level is finely nuanced in the distribution of powers in the Constitution.

However, the legislative framework is inadequate — nothing apart from the Epidemic Act, 1897. A State Government is empowered to make regulations and such temporary measures as necessary. Yet, in none of the High Courts all the regulations traceable to this power have been tabled.

Courts have been informed that this law would have to be supplemented by post-independence constitutional-era legislation in the Disaster Management Act, 2005 (DM Act), but this law too has not been scanned carefully. Storms, avalanches, landslides, cyclone, earthquake, floods, fire, building collapses and such accidents are the focal point of this legislation. The term ‘disaster’ is defined accordingly. There is a National Disaster Management Authority chaired by the Prime Minister, with powers to lay down policy on disaster management and to approve the national plan. The law envisages a “national executive committee”, thus separating the political heads from the executive and endows the latter with distinct powers and responsibilities.

Similarly, States and Union Territories with legislative Assemblies have the “State Authority”, with the Chief Minister as the Chairman, and a state executive committee. However, for Delhi, the Lieutenant Governor is the chairperson, who is not being questioned, particularly after he was made synonymous with the Delhi government by legislation.

The DM Act also envisages advisory committees. Therefore, even if overall power vests in the governments, the Act decentralises it, with macro and micro-management of a disaster. The DM Act abhors concentration of powers in the Central Government. The power exclusively vesting in the authorities created and established by this law cannot be usurped even by the State Government or Central Government.

Timely consultations, interactions, visits and inspections to gain information and knowledge of local conditions in every State and district is the mandate. When powers are conferred in a nuanced matrix of authorities, courts cannot displace, much less brush aside, and assume their jurisdiction. The court may at best ensure that they enforce and implement the preventive and mitigating measures outlined in the national, state and district plans.

The Constitution purposely uses the term “reasonable restrictions”. While curtailing the guaranteed freedoms in dealing with the epidemic, only reasonable restrictions may be placed. Whether the restrictions placed are reasonable may indeed be decided by the courts and that too in matters of individual infractions or overreach. Therefore, the DM Act may allow measures to be taken so as to prevent the disease from spreading further, but the functionaries cannot be oblivious of the Constitution. They may resort to penal laws but without eroding constitutional rights.

The interplay with other law too needs to be borne in mind. The Maharashtra Nursing Homes Registration Act, 1949, provides for regulation and inspection of nursing homes, which may include a maternity home or a surgical home which need not be a full-fledged hospital. One cannot mandate that every nursing home and maternity home must provide beds for Covid patients. A nursing home may be located amidst a residential building. To force admission of Covid patients could invite a disaster.

Yet, there is large-scale conversion of nursing homes into Covid hospitals invoking the Epidemic Diseases Act and the DM Act. The State machinery is already having to contend with power outages, fires and other mishaps on account of mingling of Covid facilities.

Non-Covid patients are suffering because neither hospitals nor nursing homes are available for treatment. Outpatient departments are closed. Besides, serious non-Covid patients too require oxygen and ventilators, which cannot be withdrawn or denied for treating Covid patients. This is certainly not efficient management of health disasters.

Interplay of laws

Medicine shortage (say, Remdesivir) cannot be handled ignoring the Drugs and Cosmetics Act, 1940. The term ‘drug’ is defined in an inclusive manner. It may include medicines for internal or external use of human beings and substances intended to be used to diagnose, treat, mitigate or prevent disease. It is only when the Central Government is satisfied that a drug is essential to meet the requirements of an emergency due to epidemic or natural calamities, that it has the discretion to issue a notification to regulate or restrict the manufacture, sale or distribution of such drug. At best, the courts can direct the Central Government to consider issuing such a notification but they certainly cannot travel beyond.

With medical oxygen, too, courts are being requested to make it available unmindful of the Explosives Act, 1884 and the Gas Cylinder Rules, 2016. It is the Petroleum and Explosives Safety Organisation that has the powers to prescribe standards and lay down procedures for conversion of industrial oxygen cylinders and inert gas cylinders (nitrogen, argon and helium) into medical oxygen cylinders. While such conversion can take place, cylinders can carry medical oxygen provided it is manufactured at licensed locations, factories and establishments. The conversion can only be made in terms of the licence. Cylinders need to meet stipulated safety standards.

Transport of medical oxygen requires separate and dedicated carriers. Even if these vehicles are mounted on rail wagons, safe transport must be assured. After the oxygen is transported and carried to the destination, its storage is a vital matter. Small nursing homes will not have designated oxygen storage plants. Loose carriage of cylinders and administration of oxygen without medical supervision cannot be permitted even by the courts.

In our enthusiasm to make constitutional courts supreme and powerful, we must not effect a reversal of roles. Courts cannot remove shortages of beds, medicines and drugs by issuing directions. Directions cannot be inconsistent with legislation. The perception all around is that last year, the Supreme Court failed us by readily accepting the stand of the executive on “migrant labour”. A repetition of the same in another direction ought to be avoided.

The writer is a retired judge of the Bombay High Court.