Constitutionality of colonial laws

The Law Minister, in apparent agreement with the Delhi High Court's verdict in Naz Foundation, has remarked that:

We have a Constitution, many a times the Constitution runs parallel to many laws which were enacted earlier to the Constitution coming into force. This includes many provisions including some of the sections under the IPC or the Evidence Act. Many of these things (laws), if put to acid test of the Constitution, they may not stand up to the scrutiny. This is the apprehension. Either the Constitution makers did not anticipate this situation or a review of the laws or the Constitution should have taken place for properly synchronising the two.

[The above is an approximate quote - readers can hear him speak in this video.]

But surely there is a third possibility--That the founders were well aware of possible conflict between colonial laws and constitutional morality, but left it for the courts and legislatures to gradually reform the former to bring them in line with the latter. This is what I had argued in an earlier opinion in the context of impunity provisions which are also colonial in origin:

Independence, when it came in 1947, marked the end of a colonial government, but it was only the beginning of the end of the colonial system of governance. This system is opaque rather than transparent, and seeks to control subjects rather than empower citizens. The accountability-seeking and empowering constitutional regime that came about in 1950 did not abolish this colonial system of governance outright. For pragmatic reasons, the constitutional design contained in Article 372 envisaged its gradual unravelling over the years.

This debate on the intention of the founders is interesting because the Supreme Court in Anuj Garg and the Delhi High Court in Naz Foundation [para 105] have suggested that colonial laws do not merit the presumption of constitutionality that is extended to post-constitutional laws.

Meeting the swine flu threat

The Epidemic Diseases Act 1897 is being invoked against uncooperative swine flu patients who refuse to be segregated in a hospital to prevent its spread. The Act can be invoked using Section 188 IPC, (Disobedience to order duly promulgated by public servant). An offence under this provision can invite simple imprisonment of one month or a fine of Rs.200 or both. Strangely, Section 4 of the Epidemics Act rules out judicial review! While no one suggests that the Act is likely to be misused against non-patients who are uncooperative with the officials, is it necessary to arm the Executive with such an extraordinary power so as to rule out scope for judicial review? The ingredients of the offence under the Act include knowledge of the order which is allegedly disobeyed by the accused, even though intention to defy the order may not be present. If the accused does not know that such an order to segregate him or her at a hospital exists, there is no remedy under the Act.

It may be interesting to find out whether this Act of 1897 was invoked during the plague in 1994. Curiously enough, the phraseology of the Act may suggest that it cannot be invoked against swine flu patients. Although the Act does not define the word 'epidemic', dictionaries define the word as a widespread occurrence of a disease in a community or a region at a particular time. Considering the isolated cases in India, it is still not an epidemic. The word 'pandemic', on the other hand, refers to a disease prevalent over a whole country or the world, which is what swine flu has been declared to be by the WHO. According to Wikipedia,, a few cases of occurrence of a rare disease may be called an epidemic, but I couldn't find an authoritative definition of the word to convey that sense.

UPDATE: On the other hand, do the authorities feel that the country is threatened with the outbreak of the epidemic - a possible ground to invoke this Act? Do the authorities also find that the existing legal provisions are insufficient to ensure segregation of such patients - another requirement to justify the use of the Act? Well, there are no clear answers.