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| @DebayanG7 | April 9,2020

We live in unusual times and this gives rise of unusual legal issues. We never thought there would be a day when the interstate movement of people would be a legal issue. We took much of our fundamental right to move freely through the territory of India, barring restrictions in border states through “inner line systems”. The coronavirus gave rise to one such problem bringing the interstate relationship under stress and raising issues of Indian federalism. The author here takes the view that the right to health gets primacy over the protectionist power of the state in its parents patria role. 

 

AMIDST the spread of the novel coronavirus (COVID-19) and it being declared a pandemic in India, various governments in the country have taken steps to control its spread. One of such steps taken by the government of Karnataka was to close down its borders with neighbouring states. Although not all these borders have been closed in an absolute manner, one of such borders having been closed completely has become a matter of dispute and controversy.

Kerala is one of the worst-hit states by COVID-19 and a substantial amount of the numbers being affected is in the district of Kasaragod, the northernmost district in the state. Kasaragod shares its borders with Karnataka in the north with very close proximity to the city of Mangalore via the National Highway number 66 (NH-66). As a result, Karnataka decided to close up its border with Kasaragod completely so as to control the influx of the virus from the said district to its state. This included closing up of the border for transportation of essential goods and travel to avail health care services.

However, Kasaragod being in such proximity with a major city such as Mangalore is heavily dependent on it for many things, most important of them being emergency health care services. The closing up of the border led to plenty of problems to be faced by the people of Kasaragod. This even ensued the death of several people in the Kasaragod area, one of the deaths being of a 70-year-old woman whose ambulance was denied entry at the border which was travelling to Mangalore for an emergency.

Thereafter, citizens approached the Kerala High Court praying for the opening up of the border as a relief. The High Court issued notices to Karnataka authorities, conducted hearings and directed the Union to open up the borders in question immediately to prevent further loss of lives. The Court said that it was “compelled” to issue such an order in the interest of mankind and preservation of human rights.

Karnataka then appealed against the judgment before the Supreme Court which heard the matter along with a similar petition (against Karnataka’s actions) as was before the High Court. The Supreme Court called for the Union and the two states to discuss the matter and formulate parameters for the passage of patients for urgent medical treatment. Subsequently, the Supreme Court was informed on 7th April that an agreement has been arrived at by the states wherein Karnataka will allow non-COVID-19 patients at the border for critical cases with necessary compliances in place.

 

Arguments – Kerala

 

At the outset, Kerala argued fundamental rights stating that Articles 19(d) and 21 of the Constitution are getting infringed given the right to movement under the former and the right to life under the latter.  It was argued that Kerala being a consumer state needed a constant flow of goods and cited precedents where “right to food” has been recognized as part of Article 21.

It was also stated that the people of the border district Kasaragod are heavily dependent on the medical hub of Mangalore for health care services. Right to life and health care was thereby highlighted. Further, it was submitted that Karnataka did not have any powers to block the highway as it is a national highway and comes completely under the ambit of the central government.

Lastly, it was argued that Karnataka acted against the directions of the Union as it allowed the movement of all essential as well as non-essential goods throughout the country issuing such a letter on 29th March, 2020.

 

Arguments – Karnataka

 

It was argued that the blocking of the national highway was the need of the hour as Kasaragod district had turned into a COVID-19 hotspot having a maximum number of cases of the infection in the already gravely hit state. Accordingly, it was submitted that there was a possibility of a serious outbreak of COVID-19 in Mangalore and the Dakshina Kannada district if free inflow and outflow of patients were allowed.

Further, it was also urged that Karnataka issued a notice through the powers under Epidemic Diseases Act, 1897 which gave them justification to close the border, and that the said notice has not been taken into consideration by the Kerala High Court.

In response to the movement of essential goods, it was submitted that the same was allowed through other routes into Kerala. There are two alternative routes for the transport of such goods from Mysore to Kannur. It was also stated that the petition which was filed before the High Court was not maintainable given the Court’s territorial limits.

The impugned order was therefore outside the scope of Articles 226 and 227 of the Constitution as it issued directions to the Union in a matter where the cause of action arose in Karnataka. It was lastly argued that even though the Union had powers to manage these highways under the National Highways Act, 1956, it did not take away the powers of the state to manage its own territorial boundaries.

 

Legal Issues

 

1. National Highways – Can a State control them?

 

The national highways in India are regulated by the NHAI which was established under the NHAI Act, 1988. Section 35 of the said Act gives NHAI the power to restrict access to the national highways. The only other legislation which talks about access to the national highways is the Control of National Highways (Land and Traffic) Act, 2002 (CNHA Act) which establishes “Highway Administrations”, powers of which would be limited to a particular highway or a state through Section 3 of the Act.

Section 30 of the Act allows refusal to access of the national highways by the Highway Administrations, however, it also says that alternative access has to be given in cases of such refusal which should not be unreasonably distant from the existing access.

Had there been such a “Highway Administration” established under the CNHA Act for NH-66 or for the state of Karnataka, the state government could have issued such orders to block the highway at the border in interest of the public. However, no such administrations exist. Moreover, a perusal of Section 30 of the Act indicates the intent of the legislature even while restricting access to a national highway is to provide for a feasible alternative so that citizens are not affected by such restrictions.

The legislation pertaining to the national highways, therefore, do not give any powers to a state to block national highways. The only legislation which gives power to Karnataka in relation to highways is The Karnataka Highways Act, 1964 which clearly states that authority and powers through the said legislation do not include national highways under its scope (See Section 1(3) of the Act).

The High Court in its order had the same observation noting that the national highways are the responsibility of the Union under the National Highways Act, 1954 and there are penalties for the obstruction of these highways. Consequently, it seems that the state authorities do not have any powers to control these highways.

 

2. Does the Epidemic Diseases Act allow the states to overreach its general powers?

 

Section 2 of the Act gives powers to a state government to take “measures” in event of an outbreak or a possibility of one, which ordinary provisions of law fail to provide. The Karnataka government issued a notice under this section to implement its decision of border closing. This Act is more than a century old and gives wide powers to the state government to control an epidemic.

It may be interpreted in quite a wide manner due to lack of any stated limits of such measures. The words “that the ordinary provisions of the law for the time being in force are insufficient for the purpose” can be interpreted to mean that the powers which the state government otherwise doesn’t have, can be deemed to it through this provision. This means that the lack of powers of a state over national highways as discussed above can be overlooked by virtue of this section. The Act clearly lacks in putting enough checks and balances in place when a government chooses to exercise these powers.

A paragraph from an article by the Indian Journal of Medical Ethics analysing the Epidemic Diseases Act is quite relevant here:

“The Epidemic Diseases Act is purely regulatory in nature and lacks a specific public health focus. It does not describe the duties of the government in preventing and controlling epidemics. The Act emphasises the power of the government but is silent on the rights of citizens. It has no provisions that take people’s interest into consideration. Peoplecentredness is about considering people’s needs, desires, values, social circumstances and lifestyles, and working together to develop appropriate solutions. The Act is also silent on the ethical aspects of human rights principles that come into play during the response to an epidemic. Individual autonomy, liberty and privacy should be respected to the greatest extent possible, even during the enforcement of laws. It would have been good if the Act stated clearly the situations under which the authorities may curtail the autonomy, privacy, liberty and property rights of the people. Using a fair process in such situations (eg closing down a hotel) would ensure that officials make impartial decisions and would also help to reduce the community’s misperceptions.”

 

3. Territorial Jurisdiction – Can Kerala High Court direct opening up of borders in Karnataka?

 

Karnataka vehemently argued that the territorial jurisdiction of Kerala High Court could not be extended to a cause of action arising in Karnataka. The High Court in its order took notice of this submission and addressed the same. It said that firstly, the Court had no interest in issuing any direction to the State of Karnataka as the authority to manage and control a national highway vested only with the Union and therefore gave directions only to the Union. In regards to the cause of action, the Court observed that the rights of the people in Kerala are getting affected causing the action to rise in Kerala itself.

It is pertinent to note that the Court also gave a reference to Article 1 of the Constitution which reads “India, that is Bharat, shall be a Union of States”, meaning thereby that the Karnataka government cannot claim to have obligations to adhere to fundamental rights only for its own people. It has an equal duty as part of the Union towards the fundamental rights of the people of Kerala as much as that of Karnataka.

Karnataka also cited a couple of precedents (1961 (2) SCR 828; 2012 (5) SCC 690) to highlight the territorial limits of the jurisdiction under Article 226. These case laws focus on the wordings of the Article itself to impose territorial restrictions on the power of a High Court.  However, in the instant matter, the above observations of the Kerala High Court seem to prevail over.

 

Conclusion

 

Two sorts of issues are faced by the Kerala population because of the blockade. One, that there is a restriction to the movement of essential goods which Kerala necessarily needs in today’s situation of crisis. The same has been addressed by Karnataka by letting open other routes which allow movement of goods into Kerala from Karnataka.

Even if these routes are farther from Kasaragod than the blocked route, this issue can be put to rest as long as the district of Kasaragod and northern Kerala is not having a shortage of essential goods when transportation of such goods is being done through these routes.

However, the second issue does not get solved through the opening up of alternate routes. Kasaragod, being a border district is far closer to Mangalore city than good medical hubs in Kerala. There are medical cases that arise in Kasaragod wherein the facilities available in the district are not enough to perform the required treatment or procedures.

This happens with a lot of relatively underdeveloped districts and cities which do not have the most sophisticated means of healthcare that is available in nearby big cities. The nearest of such cities to Kasaragod in Kerala is Kozhikode which is approximately 200 km from the district whereas Mangalore is merely 60 km even from the southernmost parts of the district. This shows how important Mangalore is in terms of proximity to Kasaragod and the natural dependency of this district on the city for medical references.

Moreover, Kerala having a good healthcare system, in general, has the doctor to population ratio of 1:300 in other districts, whereas it’s 1:1500+ in the district of Kasaragod which means that it has inadequate medical services quantitatively as well. In such a scenario, the absolute restriction of patients to come to Mangalore from Kasaragod for medical emergencies does seem against the right to life and healthcare services.

On the other hand, the powers under the Epidemic Diseases Act are so wide that it might include the closing up of borders in this situation. Karnataka has a legitimate reason to close down the northern border as the number of infected patients only in the district of Kasaragod is almost half of that of the entire state at any given point of time. This means that non-regulated flow of people on this border can prove to be a menace especially in the district of Dakshina Kannada.

There needs to be a coordinated approach to the issue by both the states in order to balance the interests of the people on either side. The interim order given by the Supreme Court asking the states to establish parameters for the transit of patients in need of urgent medical attention would be the most viable solution here and fortunately, the states seem to have accordingly compromised on the matter and have established such parameters.

Karnataka has allowed the inflow of urgent and critical patients as per the last hearing conducted before the Supreme Court. This, of course, comes with conditions most important of which being that such patients must not have been affected by COVID-19. Karnataka has also imposed compliances wherein a medical certificate from a local doctor would be required stating the aforesaid and that there is no treatment available in Kasaragod and the adjoining district of Kannur for such a patient. The Solicitor General of India has stated in the last hearing that “the dispute does not exist anymore”. Let’s hope this is true and no more lives are lost purely because of such an administrative dispute.

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