In the Part II, Ms. Rashmi Birmole briefly assesses the validity of orders under The Disaster Management Act, 2005 and its impact on the private individuals and the federal structure.
b) Mitigation of Risk by Private Parties
One of the primary directions under the original order by the Ministry of Home Affairs was the closure of private establishments, industrial units, hotels, schools, malls, shops and offices across the country. On March 20, 2020, the Ministry of Labour and Employment issued an advisory requesting employers in private and public establishments to refrain from terminating their employees and reducing their wages and deeming the period of lockdown as a period of duty. In a subsequent order dated 29th March 2020, the Home Secretary in his capacity as the chairperson of the National Executive Committee released another set of additional measures aimed at reducing economic hardship of migrant workers and informal labourers. Clause (iii) of the said order created an obligation on private employers to make regular payment of wages for the period of closure under the lockdown. This was the subject of challenge by a collective of private employers before the Supreme Court which went on to direct the government to refrain from taking any coercive action against the employers but refused to put a stay.The directive was withdrawn and ceased with the release of the directives for the fourth phase of lockdown by the Centreon 17th May, 2020.
Section 36 of the Act places the responsibility of taking measures for the prevention of disasters, mitigation, preparedness and capacity building on the ministries and departments of the Government of India. The multiple powers of the chairperson of the National Executive with respect to laying down guidelines and issuing directives regarding measures to be taken are limited to the ministries, departments, state governments and authorities. As can be made out, the scheme of the Act, including the responsibility of taking mitigating measures, rest on the State and its instrumentalities. This raises key questions about the legality of the orders issued to private employers and establishments, effectively placing on them the responsibility of taking mitigating measures. Therefore, the question which arises is whether an order which imposes such obligations on private individuals is within the contours of Section 36 of the Act? While it is true that the employers may exercise their statutory right to lay off employees in times of economic hardship during a natural calamity, the withdrawal of the order by the Centre came at the cost of millions of employees, especially the ones employed in the informal sector struggling to survive in the pandemic.
c) Diluting Federal Structures
The federal structure envisaged under the Constitution of India was famously termed as “quasi- federal” due to its centralizing tendency and overlapping legislative powers with the state by a constitutional scholar, K.C.Wheare.[i] The centralizing approach adopted by India in its measures towards the pandemic has went on to emphasize this very quasi-federal set up governing centre-state relations in India. The announcement of the initial phase of the lockdown without prior consultation with any of the states and classification of the red, yellow and green zones by the Ministry of Home Affairs are few of the many instances where the Centre has attempted to overreach in terms of its authority and hurt the spirit of cooperative federalism in India. The lack of coordination between the Centre and the State Governments has become apparent in the face of the confusion that ensued over the interpretation of the vague wording of the various guidelines released by the Ministry of Home Affairs and the numerous notifications being released by the state government and local authorities almost on a daily basis.
Disaster management forms somewhat of a grey area in the federal structure provided under the Indian Constitution. The basis for the federal division of powers is laid down in Article 245 of the Constitution and classifies subjects into union, state and concurrent lists giving the centre and the state governments the exclusive power to legislate on subjects falling in the union and state lists respectively. The power to legislate on subjects falling within the concurrent list is collectively shared by both the governments. Constitutionally, the state government is empowered to deal with the subject of public order and health under Entry 1 and 6 of the State List (List II). The power to legislate on public health emergencies arising within the state is exclusively vested with the state government with the exception of Entry 29 of the Concurrent List (List III)which allows the Centre to legislate on matters pertaining to the spread of infectious or contagious diseases from one state to another. A broad perusal of the entries in the state and the concurrent list indicate that the central government has limited powers of an inter-state nature when it comes to legislating over public health in India. Constitutionally, the executive powers of the Centre are co-extensive with their legislative powers,[ii]meaning that the exercise of both executive and legislative power must not invade the exclusive domain of the State Government. Over the past several weeks, it has been observed that the notifications circulars and guidelines released by the Centre which inter-alia regulate areas such as hospitals, markets and state government offices, fall within the exclusive legislative domain of the state governments.[iii]The entries given under the legislative lists are usually interpreted broadly and given the widest scope of which their meaning is capable. In order to justify the Centre’s exercise of power in areas that fall within the state list, it will have to demonstrate that the exercise of power is ancillary to the power granted to it under Entry 29 of the Concurrent List,[iv]or that exercise is consequential to preventing the spread of the disease from one state to another. On a bare reading of the guidelines, it is difficult to ascertain how the measures given under the circulars released by the Centre, except those relating to inter-state travel, screening at airports or train stations or compulsory quarantine for travelers, are justified.
The presence of overlapping powers between the states and the centre has given rise to friction in the existing framework for the management of the pandemic in the country. States across India have had to take a backseat while dealing with a public health emergency, the consequences and impact of which varies vastly from state to state. The deeply fragmented manner in which the provisions of law have been invoked, without any clarity on the division of roles between the Centre and the State Governments led critics to believe it to be an attempt to bypass the state and assume complete control over the situation. What also remains to be determined is whether the central government, while exercising its power under the Act, is permitted to supersede the state schemes and require state compliance with guidelines formed without coordination or consultation.
Conclusion:
Management of public health emergencies has been an area which has historically always been under the state government’s control. This is backed by sound reasoning that it is in a better position to assess the growth curve of the virus and take better and timely decisions to contain the spread. The Centre’s top down and homogenous approach towards the pandemic has proved to be counterproductive to what it seeks to prevent, all the while invoking provisions and exercising powers in a way that might not turn out to be constitutionally sound. Some argue that India’s fight against the pandemic would have been far more efficient if the state governments were given the leeway to make policy decisions, independent of central guidelines. In the near future, the country will benefit from the Centre restricting itself to ensuring coordination among states and by providing financial and technical assistance instead of invoking an Act unsuitable to deal with a pandemic to bypass the state’s role, while micromanaging the pandemic.
[i]C. H. Alexandrowicz, “Is India a Federation?”, 3 The International and Comparative Law Quarterly393 (1954).
[ii]The Constitution of India, Article 73.
[iii] List II (State List), Seventh Schedule, Constitution of India, Entry 6 (Public health and sanitation, hospitals and dispensaries), Entry 41 (State Public Services; State Public Service Commission, Entry 28 (Markets and Fairs).
[iv]State of Rajasthan vs. Chawla, AIR 1959 SC 544.
ILS Centre for Public Law 