Guarding Constitutional Contours at Times of Epidemic: The Kerala Epidemic Diseases Ordinance, 2020


Epidemic Diseases Act, 1897, or the Act 3 of 1897(hereinafter referred to as “The Act”) was enacted to contain the spread of dangerous epidemic diseases. The Government took recourse to this law to manage the Coronavirus outbreak. Section 1(2) of the Act defines that it extends to the whole of India except those territories comprised of part B states immediately before 1st November 1956. The relevant Part B states here is Travancore-Cochin. The phraseology of the abovementioned section implies that the State of Travancore-Cochin was outside the ambit of the Act and shall not be governed by it.

Thereafter, on 26th March, the Governor of Kerala exercising power under clause (1) of Article 213 of the Indian Constitution promulgated THE KERELA EPIDEMIC DISEASES ORDINANCE, 2020(hereinafter referred to as “Ordinance”). The Ordinance’s purpose was to consolidate and unify laws on the matters relating to epidemic diseases, which implies an inclusive and accommodating attitude towards all other instruments dealing with the same matter. Thus the purpose of the Ordinance strongly suggests that it must be read in consonance with the Act. Later, the Government of India promulgated an ordinance on 22nd April 2020 amending the Act, namely ‘Epidemic Diseases (Amendment) Ordinance, 2020′(hereinafter referred to as “Central Ordinance”) by omitting words that gave special status to Travancore-Cochin. Article 246(2) of the Indian Constitution enables States and Parliament to enact a law on any entry of the concurrent list. The power of the State to enact a law on the Concurrent list is subject to the Parliament’s powers to enact a law on the matters in the Union list. It establishes a dominant position of Parliament in such cases where the subject matter of the State law falls in the Concurrent list and is subject to the law made by Parliament on the matters in Union list. The Ordinance under Article 213(1) is a ‘Law’ under Article 13(3)(a) of Indian Constitution.  Moreover, by virtue of Article 367(2) of the Constitution, Every Law or Act passed by either Parliament or legislature of a state shall be construed as an Ordinance promulgated by the President and the Governor. Thus here, Ordinance can be considered as a source of law under Article 254(1) of the Constitution. The doctrine of Repugnancy can apply to such Ordinances, and every other limitation shall apply to such Ordinance as applicable to the Acts of Parliament and State Legislatures.


The power conferred by Section 2A of the Act on the Central Government in respect of inspection and detention of ships to combat an outbreak of any dangerous epidemic disease is taken away by Section 12(2) of the Ordinance by the explicit mention of repealing of the Act on territories in the Malabar area. In light of Article 254(1), the provision for repealing the Act in the Malabar area is repugnant to the existing law (the Act) on the matters enumerated in the concurrent list (entry 29 of list 3) and therefore the Ordinance to the extent of Repugnancy should be void.  Article 254(2) of the Constitution enables the States to override the Existing or Union law on having been reserved for the President’s consideration until State law has received the assent only on matters enumerated in the concurrent list. In the present case, the abovementioned assent is not obtained by virtue under 254(2), which is harmoniously construed with Article 213(3) of the Constitution because the proviso clause of it explains the procedure for a repugnant Ordinance to survive. In the absence of such assent, the State law cannot survive. The Hon’ble Supreme Court in Kanaka Gruha Nirmana Sahakara Sangha v Narayamma held that when the Paramount legislation makes it impossible for both to stand together, State law shall be repealed.

The Ordinance increases the punishment for the offence of disobeying orders of Government servant up to 2 years imprisonment with a fine of 10,000 rupees or with both. The form of offence is made cognizable and bailable (section 7 of the Ordinance). Under the Act, the offence is penalized by section 188 of IPC with the maximum punishment of 6 months of simple imprisonment or fine of 1000 rupees or with both. Section 188 of IPC also recognizes an interdiction on taking cognizance only on a police complaint, and the Ordinance removed this Ordinance. The singular form of inflicting punishment and taking cognizance is possible in any particular scenario, which herein gives rise to a repugnancy between two laws (the Ordinance and the Act). In Deep Chand v. State of Uttar Pradesh the Hon’ble Supreme Court held that Repugnancy arises when both laws are fully inconsistent and absolutely irrevocable and that it is impossible to obey one, without disobeying the other. The Hon’ble Supreme court in Kulwant Kaur and Ors v. Gurdial Singh Mann held that if repugnant laws deal with different punishments and varying procedures to try a specific offence, one of them would be repealed to preserve uniformity of law, which is the basis of Indian jurisprudence.

Section 12(2) of the impugned Ordinance explicitly states that the Act shall have no application on the territories of the Malabar area, as mentioned in the State Reorganisation Act, 1956. The Central Ordinance has intended to extend the Act to entire India and form an exhaustive code on the “same subject matter” under entry 29 of list 3 of the Constitution. The Hon’ble Supreme Court in State of Orissa v. M.A. Tulloch & Co., stressed that Repugnancy could also arise when the Parliament with a superior efficacy expressly or impliedly evinces legislation by its intention to cover the whole field defined it as the rule of occupied field. In light of the Act and Central Ordinance, it is apt to construe that Parliament must have intended to form an exhaustive code. The Hon’ble Supreme Court in Zaverbhai Amaidas v. State of Bombay stated on the issue of implied repeals that the provisions of the later law should be concerning “same subject matter” as that of the earlier law only then both can be repugnant. The same applies to Article 254(2) of the Constitution when the Parliament brings further legislation on the same matter as that of State law.


The Act did not apply to the Travancore-Cochin region; therefore, the Kerala government had the competency to enact the Ordinance for this region. If the Ordinance is alleged to transgress the powers entrusted to States, then the allegation can be duly contested by Kerala in light of section 1(2) of the Act. However, the Central Ordinance amended the provision in section 1(2) and extended its extent to all districts (including Travancore-Cochin) of Kerala. By virtue of 254(1) of the Constitution; and the assent under 254(2) read with 213(1) of the Constitution, the Ordinance to the extent of Repugnancy shall be void.

Kerala can also cite entry number 6 of list 2(State List) of the Constitution thereunder Public health and sanitation do have a wide ambit enlisting specific measures including self-contained law, rules, regulations. Yes, this contention can save the Ordinance if proved that State acted within its domain, and the Ordinance had incidental encroachment on entry 29 of list 3 of Constitution. This view is unacceptable because the essence of the Ordinance is to improve health care and sanitation in emergent situations (epidemics). After all, these subjects, including hospital and dispensary facilities, are rather steady and involve gradual improvement over a substantial period.


The contention of greater autonomy sounds suitable because States have a different trajectory of doubling and death rates Amid Coronavirus crisis. However, joint parliamentary committees  have also opined that some issues cannot be dealt with by State or Union exclusively for want of securing uniformity in the entire country and more significant provincial efforts. Therefore, the prevention of epidemic diseases is one of those matters that are deliberately put in the concurrent list. The Constitution of India is federal with a unitary bias, often termed Prefectoral federalism. The states cannot remain flat-footed with the Centre in the times of crisis. These diseases are often admitted from foreign countries and sprawl across the country, creating a nationwide health crisis. The ramping of causalities can be tackled by bringing greater cooperation among states. It cannot be denied that the Present Epidemic Act, 1897 applicable in India, is insufficient to tackle theses grave emergent situations arising out of COVID-19. However, this cannot render the states to restrict the Constitutional contours to a mere historical document and bury this revered document in a coffin during the times of imminent epidemic threat. This law is piecemeal; an overarching law in extraordinary situations is indispensable in the fight against COVID-19, and therefore an Act that is in sync with the present-day socio-economic scenario is eagerly awaited.


Shivam Shukla


Shivam Shukla is a second-year law student at Institute of Law, Nirma University.

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