Has the pandemic also caged and confined Federalism which is a basic feature of the Constitution? It will not be an overstatement to say that currently, the length and breadth of the country is being governed by notifications issued under Section 10(2) (l) of the Disaster Management Act, 2005. Are the notifications issued under Section 10 (2)(l) of the Disaster Management tinkering with the federal integrity of the States?
The Constitutional source of power if any which makes the Central Government omnipotent in the present form needs to be examined. The legislative power of the Parliament and the co-extensive Executive power is conferred by Article 245/246/73 and the fields of legislation are delineated in Schedule VII. When one examines the three lists of Schedule VII there is no entry of ' disaster management' in List I, II or III. Although the Task Force constituted for examining the working of the Disaster Management Act, 2005 and National Commission to review the working of the Constitution did recommend insertion of such an entry in the concurrent list.
However, the lack of such an entry does not denude Legislative or Executive authority of Centre by virtue of Article 248 read with entry 97 read with Article 73. But the residuary entry cannot be used to legislate on a field which is already mentioned in State list. [ UOI Vs H.S. Dhillon]. Therefore, although undoubtedly the Centre has competence over ' disaster management' but this residuary competence cannot be expanded and extended to State subjects or List II entries. Another entry which is most pertinent and directly relatable to the current scenario is entry 29 List III i.e. ' Prevention of the extension from one State to another of infectious or contagious diseases or pests affecting men, animals or plants'. Both Centre and State ( though subordinate) have power when it comes to ' prevention of extension from one State to another of infectious or contagious diseases' . The language of the entry throws much light on its ambit and scope which is prevention of spread from one State to another which will cover inter-state activities and not intra state activities. Entry 27 List I i.e. 'Port Quarantine , including hospitals connected therewith ; seamen's and marine hospitals' is also pertinent. A reading of these entries also reaffirm that so far as measures within the State are concerned the States would have the exclusive competence by virtue of Article 245/246 read with Entry 6 List II i.e. Public health and sanitation, hospitals and dispensaries and other relevant entries mentioned later. Therefore in a situation like this, the Constitution provides for macro- management at the National level like prohibiting inter-state movement , closure of airways, railways, ensuring supply of essential goods etc , laying down broad general guidelines without encroaching upon the domains which are specifically reserved for the States.
But the two main notifications , notification dated 24.03.2020 ( 1st Lockdown) and 15.04.2020 ( extended lockdown) which can be easily called the most important statutory instruments in the Covid era cover a variety of subject matters. They are in the nature of rag bag executive orders , only with a caveat that these rag bag executive orders cover the prohibited fields too. They cover offices of the State Governments ( Entry 41 : State public Services ) ; hospitals ( Entry 6 List II) ; shops ( Entry 28 : Markets and fairs) , all industrial establishments including those which fall under entry 24 i.e. Industries subject to Entries 7 and 52 of List I; intra- state movement ( Entry 13 i.e. Communications , that is to say roads, bridges ferries and other means of communication.. ) , agriculture ( entry 14 i.e. agriculture ) etc. Section 10(2)(l) cannot be so widely construed to intrude into the fields covered by List II. What cannot be done by a law can definitely not be done by executive orders. Not only does the power vest with the State but also only they are best equipped to handle these matters.
So far, the State Governments have been complying with all the directives of the Central Government without demurer. Even where States have vital financial stakes such as potable liquor only requests have been made rather than asserting the power which rightfully belongs to them. Such an attitude of the States is understandable given the delicate situation the country is in and no State Government wants to run the risk of being seen as a defaulter. However, the longer this continues the weaker the States become. Our framers were far sighted and envisaged situation like this and provided for appropriate mechanism balancing the provincial autonomy with the necessity of uniformity at National level in national interest. No, I am not talking about the Emergency provisions, they are drastic and unwarranted in the present scenario. Article 249 which confers power on the Parliament to legislate with respect to a matter in the State List in National interest was seen a ' quick' way out in case of emergencies. Although the term ' emergency' is not used in the Article possibly to maintain a distinction between the emergencies envisaged in Part XVIII of the Constitution. Article 249 provides that the Parliament may legislate on a subject in the State list if the Council of States has declared by a resolution supported by not less than 2/3rd of the members present and voting that it is necessary or expedient in national interest. Such a resolution has a life of 1 year which can be extended by another year. Grave concerns were raised by certain members regarding threat to provincial autonomy. Questions were also raised regarding the necessity of such a provision when Article 252 ( Draft Article 229) was already there which provided that if it appears to State Legislatures of two or more States that it is desirable that the Parliament legislate on a State subject it can be done if resolution was passed by the State Legislature of those States. Shri H.V. Pataskar said ' The main ground on which this power is proposed to be given is that in the national interests, the Parliament should make laws for the States. If it is really a matter of national interest I do not understand why the State itself will not either pass the legislation or be willing to consent to legislation by Parliament. Why should we presume that the State will assume such an anti-national attitude? Shri O.V. Alagesan said the provision has great potentiality for mischief. Shri T.T. Krishnamachari allaying the concerns said that this Article was required wherein it is necessary that the Centre should co-ordinate the activities of the province ' quickly' without going through the process indicated in Article 229 ( present Article 252) . He said the mischief if at all is restricted to a very limited period ( the initial draft provided for a period of 3 years which was later reduced to 1 year) and only in cases of emergency.
What I am submitting here is that the current pandemic is leading to concentration of power in one body i.e the Centre which is antithetical to the letter and spirit of our Constitution. The autonomy of States is shrinking , the federal structure is weakening. We are told by the experts that the virus is here to stay. While it may be in National Interest that the Centre calls the shots and States comply but we must not by-pass the Constitutional rigours. The current scenario is not healthy for our democracy especially given the fact that the judiciary is functioning in a very limited manner and has adopted an approach of deference.
Views are personal only
(Author is practicing Lawyer at Supreme Court of India)