COVID-19 and Dwindling Indian Federalism

Under the Constitution of India, 1950, the entry 81 of Union List of Schedule VII allots the legislative field for “Inter-State migration; inter-State quarantine” to the centre. The ­entries 1, 2 and 6 of the State List of Schedule VII allot the legislative field of “public order,” “police” and “public health and sanitation; hospitals and dispensaries” to the states. The entries 23 and 29 of the Concurrent List allot the legislative field of “social security and social insurance; employment and unemployment” and “prevention of the extension from one state to another of infectious or contagious diseases or pests affecting men, animals or plants” to the centre and states. The executive power of the union and states is “coextensive with the legislative power” under Articles 73 and 162 respectively. It means that constitutionally speaking, during the COVID-19 pandemic, the centre has the power to legislate and execute the laws and policies with respect to interstate migration, interstate quarantine, social security and social insurance, employment and prevention of the spread of infection in the country; and the states have the legislative and executive power in the area of public order, police, public health, sanitation, hospitals, social security, and containment of infection.

The Ministry of Home Affairs (Disa­ster Management Division) has through its Order No 33–4/2020–NDM–I declared the spread of COVID-19 as a “notified disaster for the purpose of providing assistance under SDRF” (GOI 2020a). The subject area of “disaster” is missing in all the three lists of Schedule VII, leaving the option for the centre to use its residuary power under entry 97 of the List I. But, in 2005, the centre enacted the Disaster Management Act (DMA) deriving its powers ­under entry 23 of List III. The very idea of Concurrent List is to provide for cooperative efforts of centre and states, and therefore, it was a wise decision on the part of centre to not invoke its residuary powers. With the legislations framed under entries of the Concurrent List, there is an added obligation on the centre to bestow equal powers and obligations on the states. The Schedule VII is one of the significant elements of Indian federalism and the highest court of the land in its historic case of Kesavananda Bharati v State of Kerala in 1976 has declared federalism as the basic structure of the Constitution. In this light, it is important to reread entry 23 of List III, that is, “social security and social insurance; employment and unemployment” to ­understand the inefficiency of the requisite powers in times of disaster for both the centre and states. It shows that the role of the DMA is limited and restricted in a disaster like situation in India and hence the powers of centre and states should remain intact as highlighted above in several entries read with Article 248 of the Constitution. Further, under Section 11 of DMA the national plan to deal with epidemic has to be prepared “in consultation with state governments and other expert bodies in the field of disaster management” which in the present COVID-19 pandemic is missing, by nullifying the role of the states in formulating a common agreeable plan completely. And interestingly, the central government has declared the national lockdown successively and that too without any national plan.