During the lockdowns the Centre has issued guidelines from time to time, ostensibly under the Disaster Management Act of 2005, containing varying restrictions on public activity and commerce which the States are expected to enforce.
The Centre directs the State governments to scrupulously enforce every new set of guidelines, with the States ONLY being allowed to increase and not dilute the restrictions.
Is the Centralised Approach Counterproductive?
- 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.However, some states and UTs have raised concerns that the areas that are identified are very large and that there was no need to keep economic activity on hold in an entire district when cases had been reported only from a small portion of that district.
- 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. This restriction on relaxing terms comes even though Kerala has shown a near-perfect recovery rate and a steep fall in the number of cases.
Such Centralised approach may actually be unconstitutional.
The federal scheme
- Under the federal scheme, Parliament can legislate on matters under the Union List (List I), Stage legislatures can legislate on matters under the State List (List II), and both Parliament and State legislatures can legislate on matters under the Concurrent List (List III) – given in Schedule 7.
- The residuary power to legislate on matters that are not mentioned in either List II or List III vests with Parliament under Article 248 of the Constitution read with Entry 97 of List I.
- The rule of harmonious construction laid down by the Supreme Court in a number of judgments dictates that the entries in the legislative lists must be interpreted harmoniously, and in the event of any overlap – the specific subject matter contained in a particular entry must be deemed to have been excluded from another entry which may deal with a more general subject matter.
- 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.
Where does Disaster Management stand in the Lists?
- 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.
So, what exactly does the Disaster Management Act do?
- 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.
How can the Centre’s Directions be considered as Unconstitutional?
- ‘Public health and sanitation’ is a specific 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.
- Consider that Disaster Management Act would have to be enacted as an exercise of residuary powers, as it does not find any particular place in any of the Lists.
- The Supreme Court has held time and again that federalism is a basic feature of the Constitution.
- 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.
The catch for constitutionality
- Under Entry 29 – ‘Prevention of inter-State spread of contagious and infectious diseases’ – of List III, both Parliament and State legislatures are competent to legislate on matters involving inter-State spread of contagious or infectious diseases.
- Therefore, theoretically speaking, Parliament would be competent to pass a law that allows the Central government to issue directions to the States to prevent inter-State spread of a disease like COVID-19.
Law for Inter-State Spread
- The law regarding ‘Prevention of inter-State spread of contagious and infectious diseases’ – is The Epidemic Diseases Act, 1897, which 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 for arresting the outbreak or spread of a contagious or infectious disease in their respective States.The Central government’s powers are limited to taking measures for inspecting and detaining persons travelling out of or into the country.
-Source: The Hindu