Riding roughshod over State governments-THE HINDU-13-05-2020
The Central government has so far followed a mostly top-down approach in tackling the COVID-19 pandemic. This centralised approach is counterproductive, has put the federal structure of India under strain, and is in fact beyond the powers of the Central government.
One, the Central government, in its latest guidelines, has classified all districts in the country as red, orange or green zones in a bid to lift lockdown restrictions in an area-specific manner. Two, Kerala, probably the best-performing State in terms of its response to COVID-19, was sent a missive by the Central government to refrain from relaxing restrictions in the State.
A study of the Disaster Management Act, 2005 as well as relevant provisions of the Constitution makes it clear that this practice of issuing guidelines and directions to the States is itself unconstitutional.
The federal scheme:
Finally, as per Articles 73 and 162, the executive power of the Centre and the States is co-extensive with their respective legislative powers, which means that the Central and State governments can only take executive actions in matters where Parliament and State legislatures, respectively, have powers to legislate.
Disaster management as a field of legislation does not find mention in either List II or List III, nor does any particular entry in List I specifically deal with this. Thus, the Disaster Management Act could only have been enacted by Parliament in exercise of its residuary powers of legislation under Article 248 read with Entry 97 of List I.
The question is, can the Act be applied at all for dealing with a pandemic. The Disaster Management Act allows the Centre to issue guidelines, directions or orders to the States for mitigating the effects of any disaster.
The definition of ‘disaster’ under the Act is quite broad and, literally speaking, would include a pandemic too. Such a reading of the Act would vest the Central government with powers to issue directions and guidelines to State governments for dealing with the pandemic in their States, which is what the Centre has been doing.
The Supreme Court has held time and again that federalism is a basic feature of the Constitution and although the Union enjoys many more powers than States, the States are sovereign. The Disaster Management Act, having been enacted by Parliament under its residuary powers of legislation, cannot be applied to pandemics in view of the fact that the power to legislate on public health is vested specifically and exclusively with the States.
That law is not the Disaster Management Act which is concerned with disasters in general, and not pandemics in particular. ‘Prevention of inter-State spread of contagious and infectious diseases’ being a specific legislative head provided in List III, the same must be deemed to have been excluded from Parliament’s residuary legislative powers.
Therefore, the Disaster Management Act, which has been enacted under Parliament’s residuary legislative powers, cannot be applied to the prevention of inter-State spread of contagious and infectious diseases.
Applying another law:
The Central government’s powers are limited to taking measures for inspecting and detaining persons travelling out of or into the country. The States are not legally bound to observe the directions/guidelines being issued by the Central government and would be well within their rights to challenge them before the apex court.