disaster-management-act-challenging-spirit-of-federalism

Context: As the nation fights COVID-19 pandemic, Centre-State relations and spirit of federalism are once again in question.

More on the news:

  • The Central government so far, has allegedly followed a mostly top-down approach in tackling the COVID-19 pandemic. 
  • During lockdown, 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, with the States only being allowed to increase and not dilute the restrictions. 

Federal structure under strain:

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. Two examples show why this is counterproductive.

  1. Classification of districts: Some States/Union Territories objected to the classification of certain areas/districts as red zones on the ground that these areas are very large and there is  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. 
  2. Trust deficit: Kerala, probably the best-performing State in terms of its response to COVID-19, was sent a message by the Central government to refrain from relaxing restrictions in the State. 

The federal scheme: Power to legislate

The Seventh Schedule to the Constitution of India defines and specifies allocation of powers and functions between Union & States. It contains three lists.

  1. Union List: Parliament can legislate on matters under the Union List.
  2. State List: Stage legislatures can legislate on matters under the State List (List II).
  3. Concurrent List: Under this 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.

Judicial interpretation and constitutional provisions:

  • 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.
    • In the event of any overlap between two or more entries, the specific subject matter contained in a particular entry must be deemped to have been excluded from another entry which may deal with a more general subject matter. 
  • Articles 73 and 162: The executive power of the Centre and the States is co-extensive with their respective legislative powers.
    • This means that the Central and State governments can only take executive actions in matters where Parliament and State legislatures, respectively, have powers to legislate.

Case of 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 under Article 248 read with Entry 97 of List I.
  • The question is, can the Act be applied at all for dealing with a pandemic. 

Comparing jurisdiction of Centre and States

Centre

States

  • 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 would include a pandemic too.
  •  Under Entry 29 of List III, both Parliament and State legislatures are competent to legislate on matters involving inter-State spread of contagious or infectious diseases. 
  • However, public health and sanitation is a specific field of legislation under Entry 6 of List II. 
  • The Disaster Management Act, 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.
  • Federalism is a basic feature of the Constitution and although the Union enjoys many more powers than States, the States are sovereign
  • Prevention of inter-State spread of contagious and infectious diseases being a specific legislative head provided in List III.
  • Applying another law - under the Epidemic Diseases Act, 1897, 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. 
  • Theoretically, 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. 
  • But, that law can not be the Disaster Management Act which is concerned with disasters in general, and not pandemics in particular. 
  • Therefore, the Disaster Management Act, which has been enacted under Parliament’s residuary legislative powers, cannot be applied to the prevention of inter-State spread of contagious and infectious diseases.

Way ahead:

  • Reaffirm cooperative federalism: Despite a strong Centre, cooperative federalism doesn’t necessarily result in weaker States. Rather, the progress of the Republic rests upon active cooperation between the two.
    • Resorting to the Epidemic Diseases Act which gives more powers to the States, instead applying Disaster Management Act, will be in the spirit of cooperative federalism.
  • Adequate funds to the States:
    • As it is the States which act as first responders to the pandemic, supplying them with adequate funds becomes a prerequisite in effectively tackling the crisis. 
    • Declaring corporations donating to the Chief Minister’s Relief Fund can avail CSR exemptions, in line with PM-CARES, can be a progressive first step in this direction.

The Disaster Management Act, 2005

  • The Act envisages the creation of a ‘National Plan’ as well as issuance of binding guidelines by the Centre to States in furtherance of the ‘National Plan’. 
  • The ‘National Plan’ then is a broader vision document while the binding guidelines are its enforcement mechanism. 
  • Section 11(2) of the Act mandates State consultations before formulating a ‘National Plan’, and to that extent, when the binding guidelines are ultimately issued under it, they are expected to represent the views of the States. 

Source: https://www.thehindu.com/opinion/op-ed/riding-roughshod-over-state-governments/article31568039.ece

https://www.thehindu.com/opinion/op-ed/reaffirm-cooperative-federalism/article31567966.ece