Is The Central Government Coronavirus Lockdown Order Constitutionally Valid?
A pedestrian wearing a protective mask crosses a near-empty road during a lockdown imposed due to the coronavirus in Mumbai, India, on Wednesday, March 25, 2020. (Photographer: Dhiraj Singh/Bloomberg)

Is The Central Government Coronavirus Lockdown Order Constitutionally Valid?

BloombergQuintOpinion

On March 24, 2020, Prime Minister Narendra Modi announced a nation-wide lockdown, from Mar. 25, 2020 to Apr. 14, 2020. The announcement came in the backdrop of the Covid-19 outbreak and is intended to enable the concept of “social distancing” to contain the spread of the virus. Additionally, the central government also found that consistency in the application and implementation of various measures across the country has become necessary to ensure maintenance of essential services and supplies.

The Ministry of Home Affairs invoked Section 6 (2)(i) of the Disaster Management Act, 2005, and issued an order on Mar. 24, 2020, directing the ministries or departments of Government of India, state and union territory governments and authorities to implement the measures laid down in the central order. The measures restrict residents’ movement outside of their homes and orders a closure of all offices, factories and shops, except those considered as essential goods and services.

While the move has been lauded by many, there has been some debate in the legal circles about the powers of the central government to pass an order of such a nature under the DMA, 2005 and whether the centre has overstepped state governments’ authority, since law and order and public health are state subjects under the Indian Constitution. This article analyses the constitutional framework on the division of powers between the centre and the state to highlight the legal framework behind the central government’s order and why it is constitutionally valid.

Division Of Power Under The Constitution Of India

Article 245 of the Constitution of India states that the Parliament or central government may make laws for whole or any part of India, and the state government may make laws for whole or any part of the state.

Article 245 lays the basis for the division of powers between the centre and the state, whereas, Article 246 provides for the ‘Distribution of Legislative Subjects’ between the central and state governments. It does so by creating three lists, enumerated in the Seventh Schedule of the Constitution, namely the

  • Union List
  • Concurrent List, and
  • State List.

The Union List lays down the subject-matter on which Parliament has an exclusive power to legislate, similarly, the State List provides for matters on which the state government has an exclusive power to legislate, and lastly the Concurrent List, provides for subject matter on which both, central and state governments, can legislate.

Constitutionally, the state government is empowered to deal with matters related to public order and public health, listed in the state list Entry 1 and 6, respectively. However, Entry 29 of the Concurrent List empowers the central and state governments to legislate on matters pertaining to the prevention of an infectious or contagious disease spreading from one state to another. The entry does not limit the powers of the legislating authority to simply public order or health, but allows for any relevant legislation to be passed, so long that it is to prevent the disease from spreading across state jurisdictions. Entry 29 of the concurrent list reads:

29. Prevention of the extension from one State to another of infectious or contagious diseases or pests affecting men, animals or plants”.

Since, both central and state government are empowered to legislate on an entry in the Concurrent List, a possible collision or inconsistency between the two legislations cannot be ruled out. In order to address this concern, the makers of the Constitution provided for Article 254, which reads:

“Article 254 - Inconsistency between laws made by Parliament and laws made by the Legislatures of States

(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by the Parliament, which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void”.

The ‘Doctrine of Repugnancy’, which is well explained by the Supreme Court of India in the case of M. Karunanidhi v. Union of India, deals with an event “where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy”.

Therefore, the Constitution acknowledges the primacy of parliamentary law over state legislation in the concurrent list. The operation of Article 254 is not complex. The real problem that arises in practice is that of determining whether a particular provision in the order passed by the state is repugnant to the order passed under the central act. Fortunately, we have a catena of judicial decisions taken by the Supreme Court, which lay down the rules for determining repugnancy.

Choices The Government Had

There is some debate in the media that the government could have declared a national emergency under Article 352 of the Constitution. However, this was legally not permissible as post the amendment of this Article in 1978 (44th Amendment), such an emergency can be declared only if the security of India or any part thereof is threatened by war or external aggression or armed rebellion. These are the only three grounds under which an emergency can be declared under Article 352.

So, effectively, the only choice that the government had was to rely on Entry 29 of the Concurrent List and invoke its powers under the DMA, which it did.

Validity Of Order Passed By Central Government

As discussed above, the central government invoked the DMA, 2005, to order a lockdown of the country. Similarly, state governments invoked other Acts to address concerns pertaining to the spread of Covid-19. The Epidemic Diseases Act, 1897, empowers a state government to prescribe temporary regulations to be observed by the public or any person to prevent the outbreak and spread of a disease. Various states have invoked the EDA, 1897, to pass orders and guidelines on social distancing measures, closure of establishments and limitation on activity. While both orders deal with similar aspects, the state governments’ order finds its power enumerated under Entry 1 and Entry 6 of the state list, while the central government’s power to pass the Mar. 24, 2020 order seems to be derived from Entry 29 of the concurrent list.

Any legislation under Entry 29 of the Concurrent List must necessarily deal with the prevention of highly infectious diseases that have the capability of extending beyond a state’s border. India has seen more than 1,000 positive cases as on date, and the number is only expected to increase as the country progresses into advanced stages of the spread. As has been seen globally, the pandemic saw a gradual increase in infections during the first few weeks and eventually escalated to a 60-100 percent increase or more in reported positive cases every day. Given the highly communicable nature of the disease and the large population of India, it seems logical for the central government to address the concern under Entry 29 in a unified manner, as opposed to state governments implementing measures not coherent with one another.

The DMA, 2005 was passed to enable the central government to provide a legal framework for setting up of a National Disaster Management Authority under the chairmanship of the Prime Minister of India and not more than nine members nominated by him. While the scheme of the Act does not specifically deal with the control of a pandemic like Covid-19, the powers of the NDMA under Section 6 of the Act can be broadly interpreted to give a unified command to the central government to effectively manage a disaster throughout India.

The term ‘disaster’ under section 2(d) of DMA, 2005 means, ‘a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man-made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area’.

The Covid-19 outbreak is bound to be classified as a disaster under the DMA, 2005, allowing the central government wide powers to deal with the pandemic by laying down policies, plans and guidelines for disaster management to ensure a timely and effective response to the disaster. Section 38 of the DMA casts a duty on the states to follow the directions of NDMA.

Moreover, Section 72 of the DMA, 2005, provides that the provisions of the Act, will have an overriding effect on all other laws, to the extent that they are inconsistent. Therefore, the order passed by the ministry of home affairs, will override all state orders and municipal orders to the extent that they are inconsistent with the Home Ministry’s order.

Bharat Vasani is partner and Samiksha Pednekar an associate at law firm Cyril Amarchand Mangaldas.

The views expressed here are those of the authors and do not necessarily represent the views of BloombergQuint or its editorial team.

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