From UPSC perspective, the following things are important :
Prelims level : DMA 2005, Residuary power of the Union legislature.
Mains level : Paper 2- Issues arising out of the use of the DMA 2005 to deal with the pandemic.
This article analyses the legal basis of application of the Disaster Management Act to deal with the pandemic by the Central Government. The Disaster Management Act had been enacted using the residuary power of the Union legislature. So, its application to deal with the pandemic gives rise to certain legal issues. Read to know more about such issues.
Two examples of why centralised approach may be counter-productive?
- One, the Central government has classified all districts in the country as red, orange or green zones.
- This classification was done in a bid to lift lockdown restrictions in an area-specific manner.
- Some States/Union Territories objected to the classification of certain areas/districts as red zones on the ground that these areas are very large.
- They pointed out that there was 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.
- Two, Kerala, probably the best-performing State in terms of its response to COVID-19, was sent a missive by the Central government to refrain from relaxing restrictions in the State.
- The Central government did not trust the wisdom and judgment of the State government in the matter.
The federal scheme and residuary power to legislate
- 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 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.
- Coextensive legislative and executive power means that the Central and State governments can only take executive actions in matters where Parliament and State legislatures, respectively, have powers to legislate.
So, which list contains 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 the exercise of its residuary powers of legislation under Article 248 read with Entry 97 of List I.
Legal problems in using Disaster Management Act for pandemic
- 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, 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.
- However, ‘public health and sanitation’ is a specific field of legislation under Entry 6 of List II.
- This would imply that States have the exclusive right to legislate and act on matters concerning public health.
- Thus, the Centre’s guidelines and directions to the States for dealing with the pandemic trench upon a field of legislation and executive action that is exclusively assigned to the States — public health.
- The Supreme Court has held time and again that federalism is a basic feature of the Constitution and the States are sovereign.
- 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.
- Also, 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.
- Therefore, theoretically speaking, 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.
- That law is not the Disaster Management Act which is concerned with disasters in general, and not pandemics in particular.
- ‘Prevention of inter-State spread of contagious and infectious diseases’ being a specific legislative head provided in List III, the same must be deemed to have been excluded from Parliament’s residuary legislative powers.
- Therefore, the Disaster Management Act, which has been enacted under Parliament’s residuary legislative powers, cannot be applied to the prevention of the inter-State spread of contagious and infectious diseases.
Role of Centre under Epidemic Diseases Act 1897
- The Epidemic Diseases Act, 1897, has the objective of preventing “…the spread of dangerous epidemic diseases.”
- However, under this Act, it is the 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.
- The Central government’s powers are limited to taking measures for inspecting and detaining persons travelling out of or into the country.
- Even if that Act were to be amended, it would not empower the Central government to issue directions to the States to contain the pandemic within the State.
- It can only deal with the inter-State spread of the disease.
Consider the question, “Use of the Disaster Management Act to deal with the Covid-19 pandemic gave rise to certain legal issues. Examine them.”
Instead of resorting to the Epidemic Diseases Act which gives powers to the States, the Centre has applied the Disaster Management Act. The States are not legally bound to observe the directions/guidelines being issued by the Central government and would be well within their rights to challenge them before the apex court.