It is difficult to imagine a country without a constitution. It is a vital necessity of the nation as it determines the power relationship between the citizens of the country and also between the other bodies governing our nation. Even the Jellinek observed that “The people of every country have the democratic right to determine the form of the government under which they are to live”. To determine the relationship, nature, and form of the government the people set up the constituent assembly. This assembly frames the constitution of the country. Thus the framing of a constitution is a very implicit concept of democracy. However, the constitution may also have automatic growth and it is surrounded by the conventions. The constitution of the country is built upon the foundation of the past activities of the nation.
The origin of our Indian Constitution is rooted in the history of India under the British. During which all modern political institutions in India originated and developed. Constitution of India is known as the Fundamental Law of India, it is also called as the Supreme Deed of India. As it is the Living Document of Nation, it explains the functional system of rules, structure, and principles of our nation. The Constitution of India is the ‘set of devices that provides the citizens and other people, Liberty, Equality, Fraternity, Freedom. Our Indian Constitution has created a constitutionalism environment in our country which is also helpful in remembering the ideal goals of Freedom Fights. The Constitution of India reflects the Sovereign, Socialist, Secular, Democratic Republic, Justice, Liberty, Equality, Fraternity. Our Constitution was adopted by the Constituent Assembly of India on 26th November 1949 and it became effective on 26th January 1950.
With 395 Articles, 22 parts, and 8 schedules and over 117,000 words, it took almost three years to draft our constitution. The constitution committee has made many provisions under the constitution concerning Fundamental Rights, DPSP, Emergency Provisions, etc. All these provisions have been taken from different countries and also from conventions, that’s why our country is stated as Federal Nation. While every Constitution strives to be imaginative and provides for measures to tackle extraordinary situations of an emergent nature, a state of emergency ensues in its wake an enormous reservoir of prerogative and discretionary power. One of the features of our Indian Constitution is how the normal peace-time federalism can be adapted to an emergency. The framers of our constitution have felt that in an emergency, the Centre should have overriding powers to control and direct all aspects of administration and legislation throughout the country.
As stated above the framers of the constitution have taken different parts from different countries, like the concept of “Procedure established by law” has been taken from Japan, Fundamental Duties taken from USSR which is Russia now. The emergency provisions have been adopted from the Government of India Act of 1935 and the suspension of the Fundamental rights during an emergency has been taken from the Weimar Constitution of Germany. An emergency generally arises because of the failure of the machinery of the government which causes or demands immediate action from the authority. As per Black law’s Dictionary, “Emergency is a situation which requires quick action and immediate notice as such a situation causes a threat to the life and property in the nation. It is a failure of the social system to deliver reasonable conditions of life”. Although our country is having a federal system at the time of emergency it could also convert itself into an entirely unitary system.
In our Indian Constitution, the provisions of emergency are such that it makes the federal government acquire the strength of the unitary government whenever the situation demands. Part 28 of the Indian Constitution deals with the Emergency provisions and there are 3 types of emergencies under the Constitution. All these emergencies imposing powers have been vested upon the President of India. There are 3 types of emergencies namely:
- National Emergency (Article 352)
- President Rule (Article 356)
- Financial Emergency (Article 360)
These emergencies are imposed as per the different situations as National Emergency is being proclaimed when there is a grave threat to our country or any of its territories due to War, External aggression, Internal disturbance. If the President is satisfied that there is some grave emergency that exists then he may proclaim the emergency either in the whole of India or in a particular state. Such an emergency is proclaimed in writing upon the advice of the Union Cabinet and it is also placed before both the houses within 1 month of its declaration of its proclamation otherwise it will expire. It is not necessary that there must be some armed rebellion, external aggression, or some internal rebellion that has to be there. It can be proclaimed even if there is a possibility of the happening of these events.
Such emergencies that are being issued by the president there is no such bar of judicial review in them it has been stated under the case of Minerva Mills v. Union of India. In this case, the Supreme Court stated that “there is no bar to judicial review of the validity of the proclamation of emergency issued by the president under Article 352(1)”. Even all the Fundamental Rights (except Article 20 and 21) have been suspended when an emergency is been proclaimed and when it gets over all of them come in working.
Today the whole world is dealing with this new kind of virus which has made its way into the human world from China. It has now been a half year and this ongoing pandemic has made many problems in our country like the economy of our country is getting down. Today our country is on the second number on having the largest Covid-19 cases. Several working machinery of the country has been affected by it. Although many of the measures having been taken by the both State and Center Government of India to limit the transmission and spread of the virus to more people. Still these measures not able to control this health disease, even it has exposed glaring gaps in India’s domestic laws. All the epidemic situations are tackled by our country from the 123-year-old colonial law which was made during the British Era was the Epidemic Diseases Act of 1897.
This act was formed to provide prevention from the spread of dangerous epidemic diseases and it only contains the 4 sections in it. It was used historically as a framework for containing the spread of various diseases including cholera and malaria. The main aim of the act was to control the outbreak of the bubonic plague in Bombay. But these 4 sections of the act are insufficient to deal with the ongoing pandemic of Covid-19, still, the state government has used this act to pass orders to restrict the movement during this outbreak of COVID-19 and the same act was once used during the outbreak of H1N1 flu and other diseases. Many of the democratic countries such as Canada, Australia, England have comprehensive and updated legislation to deal with such types of epidemic situations as ongoing. But in our country, this old law is being used and all the other bills like Public Health (Prevention, Control, and Management of Epidemics, Bio-Terrorism, and Disasters) Bill has been tabled in parliament.
But due to this widespread of the disease the emergency has been declared by the government and many questions regarding it has been raised under which article national emergency has been imposed by the center. The provision which is dealing with the proclamation of emergency is Article 352 of the Indian Constitution. As we have discussed above that the emergency under this article can be declared on grounds of war, external disturbance, and internal disturbance. This term is flexible and broad enough to include disturbances caused due to Covid-19. The word Internal Disturbance was added from the 44th amendment of our constitution and removed the term ‘armed rebellion’ Article 353 has also been used during such proclamation of emergency and it permits the central government to direct the instructions on how to use its executive power. Even the fundamental rights were also suspended during this period.
Although the center took recourse from Article 256 and 257 to impose the lockdown although two other legislations were also used Epidemic Diseases, Act 1897 empowers the state and central government to take necessary measures to control such problems. Section 2 of the act empowers the state government that they can take measures if threatened by an outbreak and section 2A empowers the central government to take measures of inspection in such situations, and even detain the person if necessary. So, the government used this activity to impose inspection or quarantine during this pandemic. Even Disaster Management Act section 11, 22, 24, 25, 35 were used by the government to formulate the plan and restrict the movement of people to go outside. Even different guidelines were introduced by the government for this pandemic of Covid-19.
Fine on Not Wearing Mask
As different guidelines have been issued by the government for different stages of these lockdowns and unlock. These guidelines were issued as per the Disaster Management Act 2005 and the Epidemic Diseases Act 1897. Although the Delhi Epidemic Diseases (Management of Covid-19) Regulations 2020, have been issued. This act allows the authorities to impose the fine of Rs500 for the first time and Rs1,000 for a repeated violation. So wearing a mask outside was made as important during this epidemic in all public places, workplaces, etc. Even if the person fails to pay the penalty amount he will liable under section 188 of the Indian Penal Code. In April another order was issued by the Delhi Disaster Management Authority which stated that “all persons moving… in public places… must wear a 3-ply mask or cloth mask compulsorily”. Even it is stated in this order that “any person moving around in his personal and official vehicle must be wearing these masks compulsorily”.
On relying the orders made by DDMA the Delhi Traffic Police started fining the person who is driving a car and he is not wearing the mask even he is alone as per the guidelines many questions were raised against it even many medical experts question the rationale behind it but it got its legal backing from the 2019 year verdict of Satvinder Singh Saluja v. The State of Bihar the Supreme Court stated that “When a private vehicle is passing through a public road it cannot be accepted that the public has no access. Indeed, the public may not have access to a private vehicle as a matter of right but the public has the opportunity to approach the private vehicle while it is on the public road”. The court while interpreting this definition held that a private vehicle would be included in the definition of a “public place”.
In this case, the petitioner was fined for consuming alcohol inside their car when they were traveling from Bihar to Jharkhand in 2016 when their cars were checked by the police officer. They went to Supreme Court and submitted that their private car cannot be said to be a public place then-Supreme Court stated this judgment. So the traffic police imposing fines got it’s backing from this judgment and a person alone in his car in any public place will be fined.
The government shall pass the bills relating to Public Health (Prevention, Control, and Management of Epidemics, Bio-Terrorism, and Disasters) Bill which has been tabled in parliament for so long. We are still following that old colonial-era Epidemic Diseases Act of 1897. There is a need for new laws in our country. Although not wearing a mask in public will cost you fine because based on the judgment stated in 2019 by the Supreme Court clearly stated that a person in his private car in a public place will be stated the same as that of public person normally there. So, from this legal backing traffic police can impose fines but still, they need not be focused on imposing fines they must also give them a warning and ask reasons if such persons got no specific reason then he should be fined as per the Covid-19 guidelines issued in different states.
 Refer Emergency Provisions under The Indian Constitution, in SUPREME BUT NOT INFALLIBLE, Essays in Honour of the Supreme Court of India, Oxford University Press, pg.l34.
Black’s Law Dictionary
 AIR 1980 SC 1789)
 Disaster Management Act 2005