Kerala

Legal experts punch holes in epidemic Ordinance

Legal experts have picked holes in the recent Kerala Epidemic Diseases Ordinance 2020 as the State government has lined up a few more Ordinances to overcome COVID-19-induced socio-economic challenges.

However, Law Minister A. K. Balan defended the Ordinance, which he felt, had provisions to meet the new challenges.

B.G. Hareendranath, former Law Secretary, pointed out that the provisions of the Ordinance, which are inconsistent with the Central legislation, the Epidemic Diseases Act 1897 and the Epidemic Diseases (Amendment) Ordinance, 2020, would be void and inoperative to the extent of repugnancy.

The Kerala act took away the power of the Centre to inspect any ship or vessel leaving or arriving at any port in India and to detain them. The State cannot repeal such powers of the Centre, he said.

Punishment

The Kerala Ordinance and the Central Act prescribed different punishments and two different procedures to deal with the same offence. While the Central Act prescribed a simple imprisonment for one month and a fine of ₹200 for the violations, Kerala would award a higher punishment of imprisonment for two years and a fine up to ₹2 lakh by making the violation a special offence, he pointed out.

When two different punishments and different procedures are suggested for a same offence, it invokes the doctrine of repugnance, which says that when a Central legislation and State legislation comes into conflict, the former would prevail.

Thus, the Kerala Ordinance is repugnant to the 1897 Act and becomes void, he contended.

According to Roshan D. Alexander, a lawyer, though the 1897 Act was amended through the Ordinance to curb violence against health-care professionals, it was made applicable throughout India. Only a Central legislation would prevail in such a circumstances, he said.

Loopholes

Even though the Kerala Ordinance empowers the State to prescribe social distancing, and to restrict or prohibit congregation of persons in public places religious institutions, it has not defined what is social distancing or congregation.

The Ordinance is also silent on the distance one should maintain as part of social distancing and the number of persons who could be called a congregation. Unless these terms are defined, no offence could be made out, pointed out a senior lawyer.

Meanwhile, Mr. Balan said the Kerala Ordinance made the offences cognizable so that police could book cases against violators. The offences under the Central Act were not cognizable ones. Kerala has prescribed harsher punishments, which would act as a deterrent, he said.

On social distancing and congregation, Mr. Balan said the norms to be followed for social distancing and congregation were notified by the State government from time to time. Such notifications would serve the purpose, he said.

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Printable version | Nov 26, 2020 10:29:01 AM | https://www.thehindu.com/news/national/kerala/legal-experts-punch-holes-in-epidemic-ordinance/article31474323.ece

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