A lot has been said about the use and misuse of the Epidemic Diseases Act, 1897. For some time now, this law has been used by the Brihanmumbai Municipal Corporation (BMC) to requisition buildings and plots of land, to convert them into isolation centres for patients suffering from the coronavirus. With a dearth of empty plots in Mumbai though, the BMC seems to have turned to empty floors and flats in residential buildings—not buildings that are largely empty but also those that have people, young and old, living in them on the other floors. Admittedly, this move by the BMC may or may not be necessary in light of the continually increasing numbers of those infected in the city. However, there does seem to be a clear and tangible risk posed to the health and lives of other citizens in the process.
A Conflict of Rights
For some time now, the Right to Health has been understood to be a facet of the Right to Life and Personal Liberty under Article 21 of the Constitution. To secure this right to all its citizens infected by the coronavirus, the State has a positive obligation to create enough care and isolation facilities. There is little to doubt that. However, it is equally true that other citizens of the city also possess the same right. Right to Health, at least vis-à-vis the State, would mean that the State shall not expose them to any undue risk which may tangibly or substantially compromise this right. The presence of a Covid-Care facility in a residential building does precisely that. Unlike a containment zone where people (except a few municipal staff members and doctors) are not allowed to enter or leave the premises, there is a constant movement of doctors, essential staff, patients and at least a few asymptomatic relatives into and out of the care facility. A possibility (and a real one, that too) of the spread of the virus cannot be denied. Evidently then, there is a conflict between the negative and positive dimension of the Right to Healthy or, to put it differently, between the Right to Health of different sections of society.
What is troubling though is that the BMC does not appear to have considered this conflict and to have addressed a potentially disproportionate impact on the Right to Health of the residents of those buildings. While such instances of a conflict between rights have not been frequently observed in our rights’ jurisprudence over the years, the concurring opinion of Justice Chandrachud in a recent Constitution Bench decision of the Supreme Court dealt with precisely this issue. Addressing a conflict between the Right to Know under Article 19(1)(a) of the Constitution and Right to Privacy under Articles 19(1)(a) and 21 of the Constitution, Justice Chandrachud held that a standard of proportionality must be applied to ensure that neither right is restricted to a greater extent than necessary to fulfil the legitimate interest sought to be achieved by enforcing the countervailing right.
In the cases of requisition that we are now beginning to notice, the residents of those buildings where isolation centres are established may have little choice but to undertake the risk of exposure to the virus. This is unlike a ‘lockdown’ where even with police enforcement, people could exercise a choice to not venture into public places like market places or grocery stores. When it comes to living in the flat or floor they call home, they may not have that choice at all. They might have no choice to use the stairs or the lift, for instance Not to mention, these buildings may also have young children or elderly persons who may not have stepped out much in the course of the ‘lockdown’ to shield themselves against the virus. They may now stand the risk of weeks of hospitalization with a disease that is not fully understood, a disease where an infected person runs the risk of her oxygen suddenly plummeting, and where the risk of fatality multiplies if you have an underlying condition.
Applying Justice Chandrachud’s dictum, their Right to Health is certainly curtailed significantly, if not entirely. The question that then needs to be addressed is whether this was necessary to protect the health and lives of those infected. With the extent of information asymmetry prevalent in the lockdown, it is difficult to conclusively assert that such a move on part of the BMC was not necessary. However, it does not seem too unreasonable that there are several other options available to the BMC. Schools, restaurants and even some government offices are spaces that are unlikely to open in Mumbai at least for the foreseeable future. All of them can be sanitized and re-used for their original purpose after the pandemic is over. Wherever necessary, owners can even be compensated for temporary use. More importantly, requisitioning those properties would pose an almost negligible risk to the Right to Health of others. The element of ‘necessity’ that Justice Chandrachud spoke of is certainly not met here.
Circumventing an Alternate Law
What makes the requisition of such floors more suspect and sheds some doubt on the ‘necessity’ to take them over is the presence of the Bombay Land Requisition Act, 1948. Not only may the requisition by the BMC not be necessary, it may not even be legal. The Bombay Land Requisition Act law allows the BMC to take over land or premises for a temporary period for any public purpose. They only need to compensate the owner of the property for that use, something which they have volunteered to do even under the Epidemic Diseases Act.
Interestingly, the Epidemic Diseases Act says that the State Government may resort to the powers conferred therein only when ‘the ordinary provisions of the law for the time being in force are insufficient for the purpose’. The Bombay Land Requisition Act, 1948 is clearly not insufficient. Why then would the BMC not resort to it?
The answer seems to lie in the Bombay Land Requisition (Exemption) Rules, 1948. Co-operative Housing Societies have been exempted from the provisions of the parent statute. While there are some conditions that need to be met for the exemption to apply, the Bombay High Court has time and again held that the exemption will continue to apply even if the conditions have not all been met. The exemption does not stand suspended till the conditions are met. The BMC must pass an explicit order withdrawing the conditions before it can requisition premises in a housing society. Till then, the exemption prevails. Therefore, the law as applicable in the State does not permit the BMC to requisition land in a residential building at all.
This is not a case where the ordinary laws are ‘insufficient’ for the purpose. They are clearly sufficient to requisition land for a public purpose. This is a case where the ordinary law says that something is impermissible. Impermissibility is not the same as insufficiency. The actions of the BMC therefore are not designed to fill up some gaps in the ordinary law to meet the needs of a pandemic. Instead, they are designed to circumvent a law and appear to be such only for the sake of convenience. Therefore, the very notification of requisition under the Epidemic Diseases Act may be suspect.
Concluding Thoughts
Writing at the start of the first phase of the lockdown, Abhinav Chandrachud warned about how emergency laws must only be used for the purpose for which they are enacted because they tend to percolate into ordinary times and curtail rights. We do not know of what will happen vis-à-vis the de-requisition of these premises that the BMC is now taking over after the conclusion of the pandemic. However, its present actions seem to have not considered the disproportionate impact on the right to health of non-infected citizens and this impact may have come to be by an illegal notification.
Requisitioning of Residential Blocks in Mumbai Disproportionately Impacts Right to Health
The misuse of the Epidemic Diseases Act has put the lives of citizens in danger.
June 4, 2020
