A Disjoint Federation : Legal Dimensions of India's Response to COVID-19
Updated: Nov 13, 2020
Author : Shubhada Sonwalker
The Indian Constitution like most constitutions in the world was not envisioned to tackle global pandemics like COVID 19. Part XVIII of our Constitution (emergency provisions) does not provide the appropriate framework suitable for a medical emergency like COVID-19. Though there has not been a formal declaration of emergency, there has been an unprecedented shift in the quantum of power towards the center. The Pandemic has revealed many chinks in the armor of the Indian Federal Structure. The governments both at the Centre
and State level have relied mainly on two legislations to tackle the epidemic. These are the Disaster Management Act, 2005 ("DMA"), and the Epidemic Diseases Act, 1897 ("EDA"). Both acts have been applied simultaneously with significant overlaps which have led to many complicated regulations, conflicting orders, and guidelines.
The Constitutional Framework Regarding Epidemic Diseases
The Constitutional Scheme
The Constitution of India has divided legislative and executive powers between the Centre and the States along the lines of three lists provided in the VIIth Schedule. The Centre has exclusive power over Union List subjects, the State over State List subjects and both the Centre as well as the States have powers over Concurrent List subjects regarding epidemics, several entries across the three lists are potentially relevant.
Union List – Entry 81 (Inter-State migration; inter-State quarantine);
State List – Entry 1 (Public Order), Entry 2 (Police), Entry 6 (Public health and sanitation; hospitals and dispensaries), Entry 33 (sports, entertainments, and amusements).
Concurrent List – Entry 23 (Social security and social insurance; employment and unemployment), Entry 29 (Prevention of the extension from one State to another of infectious or contagious diseases or pests affecting men, animals, or plants).
Additionally, after the 73rd and 74th Constitutional amendments States are also expected to empower third-tier governments like Municipal Corporations and Panchayats in the matters of health. This can be seen in the State Government laws giving powers to the municipal corporation to handle public health during the spread of epidemic diseases.By analyzing all these provisions we can conclude that the constitution envisages a role for all the three levels of government when it comes to dealing with an epidemic. With 'Public Health' being in the 'State List' and the Union and Concurrent lists only mentioning Inter-State Migration and sealing of ports. It can be inferred that the Constitution places a primary role in individual states to handle epidemics and provides a secondary role to the Union as the coordinator or facilitator. Additionally, such a division would also allow a meaningful role to municipalities and panchayats. Since executive powers are also divided as per the Seventh Schedule, the COVID-19 epidemic should have been dealt in the same manner.
The oldest and the most directly applicable law with respect to epidemics in India is the Epidemic Diseases Act (1987). This colonial-era law assigns primary duty on the states in case of a pandemic or epidemic like COVID-19. It prescribes the right to make temporary laws to curb the spread to the State Governments. It assigns a very limited role to the Centre in this regard, only to inspecting buses, trains, ships, and aircraft and detaining any person traveling in them. The EDA is a very brief law and it purposefully chose to be so brief, it contains very little concrete guidance when it comes to the administration of states during an epidemic. The bill was introduced in the erstwhile Council of Governor-general of India, where he noted that ' people must trust the discretion of the executive in grave and critical circumstances'. Such a freehand when it comes to executive powers may seem daunting. But, this was done at the state level keeping in mind the fact that to control epidemics, each state usually requires different and unique steps. Nevertheless, it is the only legislation available that directly governs epidemics in India.
To cover the lacunas in the EDA, The Union Government decided to apply it along with the Disaster Management Act (DMA) 2005. The DMA is a very substantial legislation that establishes clear guidelines and chains of command at all the three levels of government. It involves the District Magistrate and Municipal corporations for disseminating information and supplies. In the First and the Second lockdown, both the acts were applied in tandem with each other. The union government also allowed wide discretion to the state governments regarding guidelines and implementation. On 23rd March, many prominent states issued lockdown orders and detailed on a lot of issues with minimal interference from the center. With Kerala Government giving detailed restrictions and exceptions as well and the Karnatakaand Delhi following suit. This was possibly one of the best ways of controlling the epidemic and was also providing tangible results.
2. Centre Assumes Complete Control
Just after the state governments started issuing lockdown orders, the Union Government drastically changed its stance. Far from advising the states on how to use the powers under Epidemic Diseases Act (EDA), the Centre acting under the Disaster Management Act (DMA) imposed national lockdowns.This is particularly controversial as the Union Government exercised this power without consulting the states. As enumerated above the duty to form regulations to curb pandemics solely lies on state governments. Even when under Art.249 the Central Government is allowed to regulate matters of the state list in national interest. Such a resolution must first receive the support of at least 2/3rd of the members present and voting. In the present situation no such resolution was tabled so, the unilateral action is a clear encroachment of rights.
PART II- Critical Analysis
Potential constitutional conflicts in Art.256 and Art.365
The power of the Union to issue binding directions to States is primarily sourced from Article 256. There are two conditions for its applicability – first, the existence of a central law applicable to the State secondly, the directions issued by the government should be in relation to a Central Lawand finally the directive must be issued to ensure compliance with the central law.
Only under these circumstances are the states bound to implement the directions of the union government. The special bench in the famous decision of the Calcutta High Court in the case of Jay Engineering Works Ltd the court has aptly pointed out that:
If the command of the Constitution in Article 256 of the Constitution, is violated and disregarded by the Council of Ministers by issuing instructions contrary to the mandate of that Article, it must be held that the Council of Ministers had no authority to issue such directives or administrative instructions.
The government in the present case has issued the Ministry of Home Affairs Orders according to the Disaster Management Act (DMA). In the letter it has also clarified that this has been done in the nature of a ‘directive’ calling for strict compliance. But, DMA does not contain the ‘epidemics’ and these guidelines have also been issued without the consultation of states. Hence, there can be conflicts and a state may refuse to abide by these rules. The central government has been rather aggressive on this issue, and already threatened to apply presidential rule in states which have shown any form of dissent like Maharashtra and Bengal.
Under the Constitution, refusal to follow a Union directive can lead to the invocation of Article 365, which allows the President (acting under aid and advice of the Union Cabinet) to enforce the Union directives by declaring the President's rule under Article 356.But, such an imposition will also apply only under two conditions:
1) Directions given by the Union Executive are Lawful;
2) The non-compliance should lead to situations predicted by Art.356 (2), all non-compliances will not lead to the aforementioned situations and hence all non-compliances will not attract presidential rule.
The stern approach adopted by the government begs the question of the validity of the directives. It also makes us question whether the states have the power to question such arbitrary directives in case they feel that they are encroaching on their rights.
Encroachment on the justification of ‘National Importance’
Although the Union Government has not declared a state of emergency, It has de-facto used the provisions of the broadly worded Disaster Management Act (2005) to strengthen its power and temporarily remodel the constitutional and federal structure of India. To justify its centralisation, the Union Government has used the justification of ‘National Importance’. As without invoking the emergency powers the central government first ordered nationwide lockdowns by the Ministry of Home Affairs letter to all State Governments. And then offered post-facto justification. The MHA also instructed the States to follow the guidelines ‘in both letter and spirit’. It is important to note that the power conferred to the central government under Art.256 can only be applied in legislative matters falling directly in the ambit of the union list. As, noted in Part-I, public order and sanitation are exclusively part of the State list. Even, the spread of contagious diseases falls under the Concurrent List hence, the union did not have the right to unilaterally apply lockdowns without consultation with the states.
More importantly, the National Disaster Management Authority has itself noted that the subject of ‘Disaster Management’ is not covered in any of the lists in Schedule VII. Interestingly, the DMA was also legislated under Entry 23 of the Concurrent List, which is very general in nature. And since,As noted in Waverly Jute Mills Co. Ltd vs Raymon & Company (India) Pvt.Ltd, specific law supersedes the general law, technically directions issued by the State Governments under Epidemic Diseases Act should take precedence over general guidelines by the union under Disaster Management Act.
Surprisingly, the MHA lockdown guidelines addressed every minute aspect of regional governance, such as a limit of twenty persons for the congregation for funerals, or the prohibition on all gatherings for sports and entertainment purposes, without any exception. These are not matters warranting interference from the Union government. These guidelines seem to be transgressing into the domains of “Public order”, “Police” and “Sports & entertainment”, which are matters under the State List thus undermining the role of state governments and effectively the Indian Federal Structure.
Now, coming to the ‘national importance justification’ emphasis must be relied on Justice Nariman’s judgement in Jayant Verma v. Union of Indiain paras 36-38, the court held that -
The argument, therefore, that Section 21A is made by Parliament at the national level and is of national importance and must, therefore, prevail over State legislation made within the exclusive subject matters of List II, would again fall foul of the constitutional scheme, in that all the entries of List II would then be subject to Parliamentary law, which is of national importance
Therefore from the above it is clear that COVID-19 being an epidemic of national nature may not be sufficient for it to gain absolute power. This does not mean that where the Union is competent it should not issue directions. This just means that such should be decided on a case to case basis, and with consultation with states.
Union Directives in derogation of Fundamental Rights guaranteed under Part- III
States are not obliged to implement any Union directive, if the directive or the law pursuant to which it was issued, is violative of a Part III. If the Parliament or the Union executive under Article 73, did not have the power to make such laws/issue directives in the first place, by virtue of Article 13, then it cannot use the command of Article 256 to force States to implement them. It is well settled that a constitutional functionary cannot do something indirectly, which it cannot do directly. Furthermore, the COVID-19 crisis cannot justify derogation from Part III, unless the enforcement of the rights was suspended by the declaration of an emergency. The dissent of states is essential to the improvement of the status quo, so that with mutual cooperation we can come out of this disease while keeping the federal structure intact. These directives should be allowed to be applied with discretion or else we would lose not only the sacred structure enshrined in the constitution but also countless lives due to mismanagement as was seen during the exodus of migrants.
Within our constitutional scheme the Central Government is not the Sovereignboth the centre and states derive powers from the constitution. This means that the states are not dependent on the Centre to exercise their legislative or executive powers.States should not be viewed as mere branch officers especially during the pandemic where each and every region has its set of unique problems which require unique solutions. Interestingly, our Constitution did not subscribe to any set political model, like ‘quasi-federal’ or ‘unitary’ or ‘statutory decentralization’. As Austin noted, India created its indigenous federal system, which aptly reflects the idea of “cooperative federalism”. In such a system, the notion of constitutional trust between Centre and States becomes crucialSuch a study becomes even more relevant in times of crisis like COVID-19 where there are more opportunities and reasons to overreach the existing structure. As, even acting bona fide sometimes the officer may forget his duty and start to abuse its power.The government should not use the threat of presidential rule to enforce the guidelines, because the MHA guidelines have clearly proved inadequate and have demonstrated why we need the three-tier federation. Luckily for India even after so many changes the civil society has been able to register some dissent and the government has also relaxed some of the guidelines in Lockdown- III and Lockdown-IV.
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