Kerala’s grievance over Karnataka sealing its border to prevent the spread of COVID-19 has brought under focus the extent and the possible limits, of restrictions that may be imposed by the government to deal with a public health emergency. After the Kerala High Court directed the Centre to ensure free vehicular movement for those requiring urgent medical treatment on the national highway that connects Kasaragod in Kerala to Mangaluru in Karnataka, the Supreme Court has directed the Centre to confer with the States and formulate the norms for creating a passage at Talapadi, the border. An amicable solution is possibly round the corner, as there are reports of Kasaragod district suffering due to the highway closure. Many here depend on medical facilities in Mangaluru for emergencies, while others rely on inter-State movement for essential medicines to reach them. These include those battling endosulfan poisoning for many years. Karnataka’s objection is based on the fact that Kasaragod has Kerala’s largest number of positive cases. It has a reasonable apprehension that allowing vehicles might result in the disease spreading to its territory. However, it is clear that those who may travel across the border for urgent medical needs are patients other than those who are pandemic victims. A key question that has arisen is whether legal measures taken by the State to prevent the further spread of an epidemic can extend to a point where there is no exception even for medical needs.
The Kerala High Court took the view that denying emergency medical aid amounts to a violation of the right to life and liberty, and addressed jurisdictional objections from Karnataka by observing that its direction was to the Centre, as what was under closure was a national highway. There is significant irony in the Kerala point of view. Late last month, the Kerala Governor promulgated the ‘Kerala Epidemic Diseases Ordinance, 2020’ to arm itself with extraordinary powers to deal with the pandemic. One of its clauses says the State can seal its borders for such period as necessary, while another empowers it to restrict the duration of essential or emergency services, including health, food supply and fuel. Karnataka may have reason to believe that it is equally entitled to seal its borders and restrict essential services. It is a moot question whether Kerala’s new law would weaken its case that its neighbour cannot shut down its border and deny medical access to its residents. Interestingly, inter-State migration and quarantine are under the Union List, while the prevention of infectious diseases moving from one State to another is under the Concurrent List. This can only mean that while States have the power to impose border restrictions, the responsibility to prevent a breakdown of inter-State relations over such disputes is on the Centre.
