Riding roughshod over State governments
Guidelines issued by the Centre to the States under the Disaster Management Act are unconstitutional
- The Central government has so far followed a mostly top-down approach in tackling the COVID-19 pandemic.
- During lockdowns 1.0, 2.0 and 3.0, 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.
- 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.
- This centralised approach, apart from leading to undesirable outcomes, may not be strictly legal.
- 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
- 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).
- 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.
- Furthermore, the rule of harmonious construction laid down by the Supreme Court in a number of judgments, including in Godfrey Phillips v. State of U.P. & Ors (2005), dictates that the entries in the legislative lists must be interpreted harmoniously, and in the event of any overlap between two or more entries, 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.
- 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.
- 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.