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Lawless Lawmaking in a COVID-19 World

Alok Prasanna Kumar (alok.prasanna@vidhilegalpolicy.in) is a senior resident fellow at Vidhi Centre for Legal Policy, and is based in Bengaluru.

India’s management of the COVID-19 global pandemic has been marked by excessive centralisation, lawless lawmaking and non-consultative decision-making processes at the union government level. This has created an atmosphere of confusion in the management of the disease, leading to India becoming one of the global hotspots and cases fast spiralling out of the control of local authorities.

The present article was part of the remarks given by the author at the webinar on Human Rights and Democracy organised by the Social Sciences Department of Trinity College, Dublin on 27 May. The full talk may be viewed here: https://www.facebook.com/TRiSSTCD/videos/548326682522206.

In June, a COVID-19 comparison chart became popular on social media thanks in no small part to Congress leader Rahul Gandhi (2020) having tweeted it. In it, different countries’ lockdown start and finish dates have been compared to the daily detection of new cases in each country. India stands out as the only country to have lifted its lockdown when new cases were still on the increase with no peak in sight.

As a criticism of the union government’s strategy at preventing the spread of COVID-19 goes, there could not be a more damning statistic—the union government imposed one of the harshest lockdowns in the world (India Today 2020) too soon, for too long, and lifted it chaotically, resulting in a widespread humanitarian crisis and poor control of the spread of COVID-19. As of 14 June 2020, India has had 3,33,012 confirmed cases, with 1,57,330 active cases as on date and 9,519 deaths,1 making it the country with the fourth highest incidence of the disease with the lowest testing rate among the 10 countries with the highest disease burden.2 Though the mortality rate has been lower than other countries, the quality of record-keeping across the country does not inspire confidence in the veracity of these statistics (Sharma 2020).

While multiple factors may have contributed to this situation, in this column, I would like to focus on two aspects of the union government’s handling of the COVID-19 epidemic—one, the excessive centralisation of decision-making, and two, a certain lawlessness in the way in which rules and regulations have been set out, leading to a breakdown in rule of law.

There are more legal and constitutional aspects that one can point to in the context of COVID-19, namely the Supreme Court’s refusal to hold the union government to account for its failings, the manner in which the executive has usurped all law making powers, and the overt communalisation of the discourse over COVID-19, but the present column will concern itself only with these two aspects. I propose to do this to highlight how it is the persistent governance failings of Prime Minister Narendra Modi-led National Democratic Alliance (NDA) government that has also led it to its failings in tackling the COVID-19 outbreak. The two failings outlined here are not the only ways in which the NDA “model of governance” has been unable to deliver economic growth or social harmony, but illustrate the particular way in which the present government has adopted “legal” measures.

Lawless Lawmaking

On paper, the lockdown was imposed on 25 March, in exercise of the powers of the union government under the Disaster Management Act, 2005, whereas states had already begun imposing lockdowns prior to that using their powers under the Epidemic Diseases Act, 1897. Neither legislation was, however, fit for the purpose (Shanmughasundaram 2020). The former was never envisaged to deal with a nationwide outbreak of a pandemic and does not have the legal mechanisms that would enable the management of such an epidemic. The latter was passed during the colonial period and is a barebones legislation which leaves almost everything to be decided by the state government should the need arise.

Instead of filling the legislative gap with an ordinance or reconvening Parliament (as other countries have done) (Srinivasan 2020), the executive proceeded to usurp vast powers practically to run every nook and corner of the country. At the state level, the scope of the powers under Section 144 of the Code of Criminal Procedure was being used by executive magistrates and their equivalents in the police to impose all sorts of bizarre rules in enforcing the lockdown (Financial Express 2020).

The absurdity of this exercise has been revealed thanks to the Parliamentary Research Service’s (PRS) tracker on notifications related to COVID-19 at the state and union level. As on 14 June 2020, over 316 notifications related to COVID-19, at least 240 since the lockdown, have been issued to citizens by the union government and 2,684 at the state level.3 Even with a service such as PRS, it seems almost impossible for the average citizen to keep track of what is permitted, what is not permitted and what they are allowed to do according to the “law.”

The obvious implication of this is that, far from being a rule of law country, India descended into a rule-by-law country with no one, not even the government, quite sure what the law said on what was permitted or prohibited during the lockdown. Stability and consistency are two key tenets of the rule of law (Waldron 2020) that are supposed to guide how the government enacts law in India, but were completely thrown to the winds as unfettered executive discretion ruled the day. Although “law” was being enacted, it was hardly law as our constitutional form of government understood it.

Centralisation

Centralisation in decision-making has occurred on two levels: first, states have been disempowered greatly, and second, within the union government, all decisions have been made within the Ministry of Home Affairs (MHA) with little input from other ministries or departments.

The power to legislate on matters of “public health and sanitation” is within the exclusive purview of the state governments4 while the union has been given the power to prevent the spread of infectious diseases between states.5 This division of legislative power reflects the fact that the states are going to be much “closer” to the citizens in delivering effective health and sanitation services than the union government which does not have a presence in every single village or city in the country. Attempts in the Constituent Assembly to place these powers in the concurrent list were resisted (Kumar 2020) and the constitutional framework was intended to empower the government closest to the people to respond to their needs as effectively as possible.

However, despite states taking the initiative to impose their own lockdowns prior to the nationwide lockdown on 25 March, the effect of the nationwide lockdown seems to have been to strip states of all powers under the relevant laws to manage the epidemic. “Guidelines” became mandatory under the threat of penal action and mystifyingly, for a public health crisis, most of the guidelines were being issued by the MHA rather than the Ministry of Health and Family Welfare. States have been reduced to being the implementing agencies of the union’s whims with little room or flexibility to adopting the right strategy to manage COVID-19.

Even if one assumes that the power was validly delegated to the MHA, it is simply beyond comprehension how a department which concerns itself with internal security was considered the appropriate agency to deal with an issue of public health. That Amit Shah, the de facto deputy to Modi, is also the home minister is not a coincidence. Far from relying on expertise and taking advantage of technical inputs, the management of COVID-19 became one of consolidating and centralising power within the union government, with predictably disastrous consequences.

An ideal situation would have been the union government using its powers to focus on interstate spread of the disease by cutting down interstate travel. It could have focused its energies on doing the things that states could not do: assisting with foreign procurement of testing kits, personal protective equipment, and interstate coordination and assistance, among similar activities. Instead, we had the absurd sight of the union government telling states what shops could open (Business Standard 2020), what timings public parks should function on (Economist 2020), and other such trivial matters.

Conclusions

Is this, one may ask, the benefit of hindsight? After all, it is very well to be wise after the fact, but what real choices did the government have?

The failings of the NDA government in tackling the COVID-19 crisis are not unique to the way in which it handled it. Centralisation did not only fail in addressing the COVID-19 outbreak, but has also hobbled the goods and services tax (Sikander 2020). Lawless lawmaking has been a feature of not just the way the lockdown was managed, but also the way demonetisation unfolded and proved eventually to have failed at its intended aim, while harming the economy (Kumar 2016).

Any discussion in the handling of COVID-19 by the Indian government has to mention the humanitarian crisis it triggered for migrant workers, who were abruptly left without work and were forced to go back home to their villages, as the absent social security net portended only hunger and destitution for them. Having failed to foresee this disaster, the government firmly denied it was even a problem (Scroll.in 2020) until it was forced by circumstances to do so.

Having failed at controlling the epidemic at the national level, the strategy of the Modi government seems to be to leave it to the states to manage it on their own, leading to widely different outcomes from state to state. With the epidemic yet to peak in India, an ominous July awaits us all.

Notes

1 Numbers as taken from https://www.covid19india.org/, viewed on 15 June 2020.

2 Numbers as taken from https://www.worldometers.info/coronavirus/, viewed on 15 June 2020.

3 Numbers as taken from Parliamentary Research Service, https://prsindia.org/covid-19/notifications, viewed on 15 June 2020.

4 Entry 6 of List II of the Seventh Schedule read with Articles 245 and 246.

5 Entry 29 of List III of the Seventh Schedule read with Articles 245 and 246.

References

Business Standard (2020): “Covid-19 Lockdown: Govt Allows Standalone Shops to Reopen, with Conditions,” 25 April, https://www.business-standard.com/article/economy-policy/covid-19-lockdown-home-ministry-allows-opening-of-shops-with-conditions-120042500230_1.html.

Economist (2020): “India’s Bureaucrats Are Fighting Covid-19 with Red Tape,” 11 June, https://www.economist.com/asia/2020/06/11/indias-bureaucrats-are-fighting-covid-19-with-red-tape.

Financial Express (2020): “Govt of India’s Voluntary Aarogya Setu App Made Mandatory for Smartphone Users in Noida, Greater Noida,” 5 May, https://www.financialexpress.com/industry/technology/govt-of-indias-voluntary-aarogya- setu-app-made-mandatory-for-smartphone-users-in-noida-greater-noida/. Gandhi, Rahul (2020): Twitter post, 5 June, https://twitter.com/RahulGandhi/status/1268888815340421122?.

India Today (2020): “India Implements Strictest Lockdown in the World, Lags in Testing: Expert,” 10 April, https://www.indiatoday.in/india/story/india-implements-strictest-lockdown-in-the-world-lags-in-testing-expert-1665604-2020-04-10.

Kumar, Alok Prasanna (2016): “Demonetisation and the Rule of Law,” Economic & Political Weekly, Vol 51, No 50, pp 19–21.

— (2020): “The Wages of Centralised Decision-making,” Deccan Herald, 31 May, https://www.deccanherald.com/opinion/the-wages-of-centralised-decision-making-843786.html.

Scroll.in (2020): “Coronavirus: ‘No Migrant Workers on Roads as of 11 am,’ Centre Tells Supreme Court,” 31 March, https://scroll.in/latest/
957784/coronavirus-no-migrant-workers-on-roads-as-of-11-am-centre-tells-supreme-court
.

Shanmughasundaram, Manuraj (2020): “India Needs to Enact a COVID-19 Law,” Hindu, 8 May, https://www.thehindu.com/opinion/lead/india-needs-to-enact-a-covid-19-law/article31529036.ece.

Sharma, Neetu Chandra (2020): “Data on Covid Deaths in India May Have Gaps,” Livemint, 13 June, https://www.livemint.com/news/india/data-on-covid-deaths-in-india-may-have-gaps-11591989361711.html.

Sikander, Zainab (2020): “After Demonetisation and GST, Slow Response on Corona Is Latest Disaster of Centralisation,” Print, 30 May, https://theprint.in/opinion/after-demonetisation-and-gst-slow-response-on-corona-is-latest-disaster-of-centralisation/390790/.

Srinivasan, Meera (2020): “COVID-19: Maldives Parliament Meets Online, Discusses Strategies,” Hindu, 15 May, https://www.thehindu.com/news/international/covid-19-maldives-parliament-meets-online-discusses-strategies/article31212078.ece.

Waldron, Jeremy (2020): “The Rule of Law,” The Stanford Encyclopedia of Philosophy (Summer 2020 Edition), Edward N Zalta (ed), forthcoming, URL: https://plato.stanford.edu/archives/sum2020/entries/rule-of-law/.

[All URLs were accessed on 15 June 2020.]

 

Updated On : 23rd Jun, 2020

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