The Central government has so far followed mostly a top-down approach in tackling the COVID-19 pandemic.
Guidelines issued by the Centre to the States under the Disaster Management Act are said to be unconstitutional. Here is why.
What has the Centre's role been?
During lockdowns 1.0, 2.0 and 3.0, the Centre has issued guidelines from time to time.
These were issued under the Disaster Management Act of 2005.
They contained varying restrictions on public activity and commerce, which the States are expected to enforce meticulously.
In this, the States are only being allowed to increase and not dilute the restrictions.
The centralised approach has put the federal structure of India under strain and this has turned out counterproductive.
E.g. The Central government, in its latest guidelines, has classified all districts in the country as red, orange or green zones.
But at instances were cases are only from a small portion of a district, keeping economic activity on hold in the entire district is undesirable.
Another instance is in regards with Kerala, probably the best-performing State in terms of COVID-19 response.
The Kerala government had issued revised guidelines in mid-April 2020.
This was after a near-perfect recovery rate and a steep fall in the number of cases.
But it was sent a communication by the Central government to refrain from relaxing restrictions in the State.
How does the federal scheme work?
Under the federal scheme, Parliament and Stage legislatures can legislate on matters under the Union List (List I) and State List (List II) respectively.
Both Parliament and State legislatures can legislate on matters under the Concurrent List (List III).
The residuary power to legislate on matters that are not mentioned in either List II or List III vests with Parliament.
The Supreme Court too has held at various points that the entries in the legislative lists must be interpreted harmoniously.
Finally, as per Articles 73 and 162, the executive power of the Centre and the States is co-extensive with their respective legislative powers.
What is the case with disaster management?
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.
[This is as per Article 248 read with Entry 97 of List I.]
Can the Act be applied at all for dealing with a pandemic is the question now.
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.
However, ‘public health and sanitation’ is a specific and exclusive field of legislation under Entry 6 of List II.
This would imply that States have the exclusive right to legislate and act on matters concerning public health.
Thus, the Centre’s guidelines and directions to the States for dealing with the pandemic become contentious.
What does the Constitution specify?
The Supreme Court has held repeatedly that federalism is a basic feature of the Constitution.
Although the Union enjoys many more powers than States, the States are sovereign.
Under Entry 29 of List III, both Parliament and State legislatures can legislate on matters of inter-State spread of contagious diseases.
So, Parliament would be competent to pass a law that allows the Central government to issue directions to the States to prevent COVID-19.
But that law is not the Disaster Management Act, which is concerned with disasters in general, and not pandemics in particular.
In other words, ‘Prevention of inter-State spread of contagious and infectious diseases’ is a specific legislative head provided in List III.
So, it should have been excluded from Parliament’s residuary legislative powers.
Clearly, the Disaster Management Act (enacted under Parliament’s residuary legislative powers) cannot be applied in this case.
Is there a specific law already in place?
The Epidemic Diseases Act, 1897 has the objective of preventing the spread of dangerous epidemic diseases.
However, under this Act, it is the State governments which have the prerogative to take appropriate measures.
The Central government’s powers are limited to taking measures for inspecting and detaining persons travelling out of or into the country.
Even if it were amended, it would not empower the Central government to issue directions to the States to contain the pandemic within the State.
It can only deal with inter-State spread of the disease.
So by the present means, the States are not legally bound to observe the directions/guidelines issued by the Centre on the pandemic.
It would be well within their rights to challenge them before the apex court.
