A lot more can be written about the judgment of the Kerala high court but for now, suffice it to say that this is not just a basic proposition under Indian law, but a basic proposition everywhere. The Israeli High Court of Justice – not exactly known for being a hotbed of bleeding-heart liberal jurisprudence – held a few days ago that the Shin Bet could not engage in surveillance without authorising legislation. Last week, for example, the high court of Kerala refused to allow the government to cut salaries without specific legislation authorising it (the court correctly observed that the existing provisions of the Epidemics Diseases Act and the Kerala COVID-19 ordinance were far too generic to authorise such a step). It should be noted that the proposition I am advancing here is a very basic one. This, however, is the very definition of rule by executive, instead of the rule by and of law. If the NDMA was indeed accepted as the basis, then this would effectively subvert the legality requirement entirely and across the board: there could, hypothetically, be one single umbrella legislation that stipulates that “the government may do anything that it believes is reasonable to achieve the public interest”, and do away with any further need for lawmaking in toto. The enabling clauses do not help, because – as pointed out above – they are generic enough so as to permit just about any decree that (the executive believes) is required to tackle the disaster. The NDMA cannot be such a law, because it says absolutely nothing about the circumstances, manner, and limitations under which the government is authorised to limit or infringe civil rights (in this case, the right to privacy). Any such law has to be specific and explicit with respect to the rights that it seeks to infringe, the bases of infringement, the procedural safeguards that it establishes, and so on. When it comes to the infringing of rights, however, the problem is even more acute: Part III of the Constitution requires that even before we get to the discussion of whether a rights violation is justified or not, there must exist a law that authorises it. I have discussed previously the separation of powers and other democratic problems that come with using vague enabling legislation to anchor a wide-reaching executive response.
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The legal framework for the government’s pandemic management strategy has been the National Disaster Management Act, which has an umbrella clause permitting the issuance of guidelines and directions aimed at addressing disasters. The mandatory imposition of Aarogya Setu through executive decree, however, suffers from serious legal problems. To those who have followed the many twists and turns of the Aadhaar story, this metamorphosis from “voluntary” to “voluntary-mandatory” to “effectively mandatory” will have a familiar ring – the pandemic probably just accelerated the pace of transformation from a few years to a few weeks. In this post, however, I want to briefly consider Guideline 15 of Annexure 1, which mandates the use of the government’s contact tracing app – Aarogya Setu – for all private and public employees, and obligates employers to ensure 100% coverage. This particular direction lies at the intersection of rule by executive decree and the undermining of federalism. For example, unlike previous directions, this one actually does impose a physical curfew (between 7PM and 7AM), and directs local authorities to pass necessary orders implementing it. Many of these directions exacerbate existing problems.
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The extension of the “nationwide lockdown” by another two weeks has brought with it a slew of further directions under the National Disaster Management Act.