Niharika Salar
National University of Singapore
Faculty of Law
The interplay between the Central and the State authorities was a central feature of the Indian response to Covid-19 in early 2020. The following blog attempts to shed light on it with the help of the State of Kerala’s response.
Constitutional Framework
The Indian Constitution provides for a dual polity consisting of the Union at the centre and the States at the periphery. Each is endowed with sovereign powers to be exercised in the fields assigned to them respectively by the Indian Constitution. Such designation is achieved with the help of the Seventh Schedule to the Constitution via 3 lists. The Centre has legislative and executive powers over entries in the Union List whereas States have similar powers over State List entries. Both the Centre and the States have powers over Concurrent List entries.
Public health emergencies in India are dealt with jointly by the Central and State governments. The Union List of the Constitution of India empowers the Centre to make laws on matters dealing with port quarantine, seamen’s and marine hospitals, and interstate migration and quarantine. The State List of the Constitution of empowers the States to make laws relating to public health and sanitation, hospitals and dispensaries. Additionally, the Concurrent List of the Constitution of India allows both to make laws on the prevention of the transmission from one state to another of infectious or contagious diseases or pests affecting humans, animals, or plants. Article 254(1) of the Indian Constitution establishes that where the provisions of a Central Act and a State Act in the Concurrent list are inconsistent and absolutely irreconcilable, the Central Act will prevail and the State Act will become void.[1]
Disaster Management Act in a viral Pandemic
For a long period of time, disaster management had conventionally been considered as falling within the competence of the States as per the previous colonial practice. Given the location of disaster prone areas in the geographical jurisdictions of the States, States have usually been the first responders to the crisis situations. However, a series of catastrophic natural disasters in early 2000s exposed inadequacies in a number of state government responses. This led to calls for a comprehensive national legal framework for disaster management.
In response, the Parliament of India enacted the Disaster Management Act in 2005 (‘DM Act’) that presently constitutes the core of legal framework of disaster management in the country. The DM Act defines a “disaster” as any catastrophe, mishap, calamity or grave occurrence in any area, arising from either natural or man-made causes, or by accident. The DM Act splits the process of disaster management into 3 tiers – the National Disaster Management Authority (at national level), State Disaster Management Authority (at state level) and District Disaster Management Authority (at district level). The three authorities are required to work together, coordinate and implement measures for disaster management.
India opted to respond to the pandemic with the help of this legislation by declaring Covid-19 as a notified disaster.
There has, however, been previous reluctance about the use of this law on two fronts.
First, the NDMA had not always performed well in the past. The Indian Supreme Court in 2017 called out the NDMA for its lack of vigilance over State preparedness is a reminder of the initial scepticism. The Indian state of Uttarakhand witnessed a devastating natural disaster in the form of torrential rains in June 2013. The Comptroller and Auditor General of India (CAG) report on performance audit of the natural disaster tabled in the State Assembly said the "immediate response of the government and district administration of the affected districts was not adequate".
Secondly, the law fosters a hierarchical command and control which has been criticised as marginalizing NGOs, local representatives and local communities. Nevertheless, with the help of this law, the Centre directed State governments to enforce every new set of guidelines. The States could increase the restrictions but were not allowed to dilute them. In addition, local authorities were to be established, manned by high-level functionaries, to carry out the national plan.
The NDMA, in exercise of the powers under Section 6(2)(i) of the DM Act , issued an order dated March 24, 2020, directing State governments to take effective measures to prevent the spread of Covid-19 in the country. In compliance of the said order, Ministry of Home Affairs (MHA) issued an order on the same day under Section 10(2)(l) of the DM Act with guidelines and requirements for strict implementation. The order was in force for a period of 21 days with effect from March 25, 2020 and, with that, India witnessed its first Covid-19 nationwide lockdown.
However, few State governments were eager to act faster in response to the pandemic than the Central Government. Putting early restrictions on mass gatherings especially places like educational institutions was an initial step by States like Uttar Pradesh, West Bengal, Rajasthan and Punjab. Such step came around mid-March in most of these States, weeks before the national lockdown. Odisha declared Covid-19 as a state disaster on March 13, 2020 and ordered immediate closure of many public places despite the absence of a single case of Covid-19. Punjab State government announced emergency measures, including setting up of Flu Corners in all government and private hospitals, to prepare for any exigency arising from the pandemic.
The Epidemic Diseases Act, 1897
Alongside this, many States enacted their own Covid-19 regulations, deriving their powers from the Epidemic Diseases Act, 1897 (‘ED Act’). The ED Act is an extremely short colonial era law originally enacted to curb the bubonic plague in Bombay (present day Mumbai). The law originally envisaged the Governor-General in Council empowering local authorities, in light of which it has had a characteristic gradational history despite being a central statute. Its provisions vest State governments with the powers to prescribe necessary temporary regulations for the public with an aim to control the outbreak of an epidemic disease. State governments may do so if they are satisfied that the current law in force is not sufficient for the purpose.
For example, Odisha State government approved the Odisha Covid-19 Regulations 2020 on April 3, 2020 through the Department of Health and Family Welfare. The government order empowered local authorities to act in their respective jurisdictions. Similarly Karnataka State government notified The Karnataka Epidemic Diseases, Covid-19 Regulations, 2020 to prevent the outbreak and spread of the novel coronavirus. It was notified in the gazette under the Epidemic Diseases Act, 1897 and is in effect for one year since March 11, 2020. On March 14, 2020 the Maharashtra state government also notified the Maharashtra Covid-19 regulations, 2020 to prevent and contain the spread of COVID-19 in the state. The focus of these regulations remained on screening, quarantine and containment zones.
Kerala’s early pushback
Kerala was a proactive state in its response to Covid-19. While the rest of India was trying to come up with an effective plan , Kerala Health minister K.K. Shailaja ordered Kerala’s four international airports to start screening passengers in January 2020. By February, she had a 24-member state response team coordinating with the police and public officials across Kerala. The State Executive Committee, Kerala State Disaster Management Authority declared the virus outbreak as a state specific disaster on February 2, 2020. An informal lockdown on March 11, 2020 was announced early on to control rising cases. Kerala was also one of the firsts States to announce an economic revival package worth Rs 20,000 crore ($2.6 billion) on March 19, 2020 to fight the pandemic which put the State in a more prepared position when the central lockdown was announced by Prime Minister of India.
However, the need for more powers to undertake any necessary measures and specify regulations was felt. With the legislature not in session, the Governor of Kerala acted swiftly by promulgating the Kerala Epidemic Diseases Ordinance, 2020, (Ordinance 18/2020) on March 26, 2020. The legal source of such action can be found in the central ED Act (as explained above) and Article 213(1) of the Indian Constitution which empowers the Governor to promulgate ordinance, during recess of legislature, if circumstances exist which render it necessary for him to take immediate action. To issue an ordinance, the Governor must be satisfied with the circumstances that make it necessary for him to take immediate action. With the help of the ordinance, the State government derived such powers. While Covid-19 Regulations were framed by several States under the central ED Act, the Kerala Ordinance appeared to be different as it was seeking to “unify and consolidate the laws relating to the regulations and prevention of epidemic diseases” in the State.
Much like the DM Act , Section 2A of the ED Act authorizes State governments and the Central government[2] to pass any regulations that they might deem “necessary to prevent the outbreak or spread” of an epidemic disease. However, necessary implication of Section 12(2) of the Kerala Ordinance, 2020 is that it attempts to take away the powers of the Central Government. Section 12(2) of the ordinance invited criticism for going against the central ED Act, which stated that the provisions of the central ED Act would not have any effect on the state jurisdiction. Later, the Governor of Kerala promulgated another ordinance titled The Kerala Epidemic Diseases (Amendment) Ordinance, 2020 (Ordinance 38/2020) on July 4, 2020 omitting Section 12(2) from the previous ordinance.
Since both these ordinances would cease to operate on October 5, 2020, all the provisions were combined together to promulgate the Kerala Epidemic Diseases Ordinance, 2020 (Ordinance 57/2020) on September 28, 2020.
The Ordinance conflicts
A comparison of the Kerala Epidemic Disease Ordinance, 2020 (‘Kerala ordinance’) with the central legislations, the DM Act and the ED Act give rise to an interesting constitutional issue of conflict. The former is a State law and the latter are statutes adopted by the Indian Parliament respectively. The ED Act is a Central Government Act to provide for the better prevention of the spread of dangerous epidemic diseases which extends to the whole of India and was amended in 2020 in wake of rising incidences of violence against healthcare workers. On the other hand, the DM Act is meant to provide for the effective management of disasters and incidental matters.
The Kerala Ordinance addresses subject matter which is directly related to the legislative field enumerated in Entry 29 of the Concurrent List (Prevention of the extension from one State to another of infectious or contagious diseases or pests affecting men, animals or plants). Since, both the Central and State government are empowered to legislate on an entry in the Concurrent List, a possible collision or inconsistency between the legislation is foreseeable
The Kerala ordinance defines an epidemic disease as “any disease declared as epidemic diseases by a notification published in the official gazette by the (State) government”. This definition is provided under Section 2 (a) of the Kerala ordinance, giving wide and undue powers to the State government to notify anything and everything as an epidemic. Under the Indian Constitution, the phrase “Epidemic Disease” is not used in any of the three lists in the Seventh Schedule of the Constitution. The exclusive legislative powers of the States appear to be only in respect of “public health”, which has been defined in very broad terms and does not necessarily deal only with epidemic diseases.
The amended ED Act, 2020 makes offence against healthcare personnel non-bailable offences but the Kerala ordinance treats offences as bailable. Additionally, the central ED Act prescribes imprisonment for disobedience up to five years and ₹2 lakh fine when compared to imprisonment of up to only two years and ₹10,000 fine in the Kerala ordinance.
2 lawyers filed a writ petition before the Kerala High Court challenging the constitutionality of the Kerala ordinance on account of repugnancy with the DM Act. The Kerala High Court found no merit in the case and was of the opinion that there were no inconsistencies as the State Executive Committee was well within Section 30[3] of the DM Act to issue additional guidelines. Similarly, the Karnataka Epidemic Diseases Ordinance, 2020 was challenged by an advocate as it diluted central ED Act by making similar offences bailable. The Karnataka High Court opined that the offences which are incorporated in the Central Act are distinct and different from the offences in the State Ordinance. The petition was dismissed as well. No appeals have been filed in the Supreme Court of India yet.
Conclusion
What is being witnessed thus is a clash of legal instruments over similar offences and provisions. Different punishments and procedures invite conflict and legislative competence due to which the Kerala Ordinance has been argued to be repugnant by many and hence void. However, a failed petition on similar grounds in the Kerala High Court presents a picture of both the legal instruments being in force today. This has put in a system of competition where the Centre is trying to exploit the DM Act and state governments are trying to mould the ED Act to their maximum possible benefit.
India appears to have approached the pandemic through a fragmented approach suited to level based needs. Such a response has put the federal structure of the country under strain where State governments and the Centre have found themselves in an uncomfortable position of disagreement.
A mild preference for an independent say in relevant Covid-19 response related legislation is visible here on account of individual States’ particular demographics and geography. Some States have found more comfort in a decentralised manner of response given their emergency situations history. And this is, as I argue, precisely the reason why the ‘one size fits all’ approach appears not to working in favour of India as there is a visible lack of commitment between State governments to put up a strong front together against the pandemic. The pandemic for one thing has strengthened tensions within India’s federal structure and highlighted new Centre-State conflicts exposing constrained space for States.
[1] M. Karunanidhi v/s Union Of India, 1979 SCR (3) 254
[2] Powers inserted later in 1920 & 2020 by way of amendments
[3] Constitution of State Executive Committee