On April 24, India completed a month in one of the world’s harshest lockdowns. Since the Prime Minister’s unilateral announcement of a total lockdown on March 24, India has witnessed multiple unprecedented humanitarian catastrophes. Some of these disasters began with the ill-fated, and incorrectly named ‘Janata Curfew’ that was observed on March 22.
The ‘Janata Curfew’ saw instances of police atrocities, a confused citizenry and an absolute lack of clarity on what constituted “essential”. Instead of learning from the feedback, the Union government chose to proceed with a complete lockdown of the country – with almost no clarity on what role the Union would play, and what was expected of the States.
It is not surprising then, that desperate, hungry and stranded migrants were left with no choice but to violate the lockdown and try to return to their homes. Because the Union government had chosen to not anticipate this crisis, there were no institutional mechanisms to ensure inter-State coordination, which only exacerbated the crisis.
The Union government is relying on the National Disaster Management Act, 2005, (NDMA) to issue successive “advisories” to State governments on how States should enforce the law. The NDMA was originally intended to create an institutional framework to deal with natural or man-made disasters – such as earthquakes or calamities. A plain reading of the legislation makes it clear that the Act does not empower the Union government to enforce a nationwide lockdown.
In fact, the Act frames the role of the Union government in terms of facilitation, assistance and coordination. For example, a “disaster” is defined as one only when its “nature or magnitude as to be beyond the coping capacity of the community of the affected area”. Similarly, Section 62 of the Act lists the “measures” that the Union is empowered to take. These include “cooperation and assistance” to States on their request or if the Union “otherwise deemed it appropriate”. So far, the Union government has not provided any factual basis for why Covid-19 was beyond the “coping capacity” of any area of the country. Neither has it provided any evidence as to why it believed that States should be “assisted” despite no explicit request to this effect.
In contrast, the constitutional and legislative framework actually empowers States to be at the forefront of fighting an epidemic. Under the State List of Schedule VII to the Constitution, States have exclusive legislative and administrative powers with respect to “public order” (Entry 1), “police” (Entry 2) and “public health, sanitation, hospitals, dispensaries” (Entry 6). Furthermore, the Epidemic Diseases Act, 1897, empowers States to make regulations necessary to prevent the spread or outbreak of a disease. In contrast, the 1897 statute limits the Union’s powers to inspection of vessels and ships.
It is evident that the constitutional scheme understood that the Union cannot set detailed regulations of how States should carry out a lockdown. The Union is not competent to make policy for States accounting for the geographical, demographic or economic disparity within their jurisdictions. At best, the Union can set broad policy objectives for States to implement. In contrast, State governments are not only constitutionally empowered but are also best placed to understand how a lockdown can be enforced, and what services would constitute as “essential”.
Instead, the Union has accorded itself the power to decide everything for States. In one instance, the Union has objected to Kerala government’s decision to begin relaxing the lockdown. Similarly, it has “advised” State governments to “screen” migrant workers in order for them to be able to get to work, but State governments are still not permitted to screen them so that they can travel back to their home States. The Union government is in no position to assess the specific context of a particular State, let alone the circumstances in which migrant workers are living or what is best for them.
Conditions of states -:
What the lockdown has shown is the present government’s inability to discharge its own constitutional responsibilities while holding States to impossible standards. It has repeatedly attempted to centralise power while federalising all responsibility on the States.
Two instances of this tendency stand out. Firstly, States have been demanding changes in policy and fiscal relief to tide over the economic fallout of the lockdown. The Union has preferred to ignore these demands while persisting with extravagant expenditure such as the Central Vista project, which has a price tag of Rs 20,000 crore. Secondly, the Union failed in ensuring adequate screening of passengers coming into India. India saw approximately 15 lakh international arrivals. However, the Union government failed to properly screen or quarantine arrivals.
In contrast, the Union has been enthusiastic in taking on the role of micromanager. It has set up Inter-Ministerial Central Teams (IMCTs) to “conduct field visits” of different States. These teams are neither constitutionally empowered to “write up” States for doing an inadequate job, nor are they meant to create a genuine grievance redressal mechanism for States.
The Union claims that IMCTs are empowered under Section 10(2) of the NDMA. However, the section has no such clause allowing the Union to interfere in a State’s constitutionally exclusive domain. In fact, the section requires the Union to “advise, assist and coordinate” between Departments and governmental agencies. Moreover, the section places the burden of providing available “men or material resources” on the Union. The present government has done little to discharge its statutory or constitutional obligations to States, but has been happy to overuse provisions in NDMA that permit it to monitor or issue guidelines.
The Inter-State Council would be the appropriate institutional mechanism since it is chaired by the Prime Minister and includes other Union Ministers along with all Chief Ministers. It is a mechanism meant to ensure that a consistent national response can be devised that accounts for the diversity of India. The Council is also best placed to ensure that decisions are not taken by bureaucrats in the Ministry of Home Affairs, but by those who are most likely to enforce them.
In conclusion, there are constitutional systems in place to ensure that the Union and the States cooperate with each other. Instead of using these systems, the present government has preferred an unconstitutional nationwide lockdown. If the lockdown is to be constitutional, then it must be enacted and enforced through constitutional means.
When a pandemic points to constitutional crisis:-
The novel coronavirus outbreak has created widespread confusion and panic globally, resulting in a countrywide lockdown in India. Not only does this present as a public health crisis, but it also emerges as a potential constitutional crisis at the macro level.
While staying at home has emerged as the best possible solution to contain the pandemic world-over, a developing nation such as India finds itself in a peculiar muddle with the lockdown since a large part of its population belongs to the working class. Daily wage workers employed in other states have been hit heavily by the double whammy of a disease scare and the large-scale loss of employment. Pursuant to the announcement of the lockdown on March 25, thousands of guest workers across the country set out to return to their hometowns. These include daily wage earners, domestic workers, construction workers and street vendors. The restricted movement of motor vehicles at state boundaries under the National Disaster Management Act 2005 meant that several workers had to return home on foot, lugging their belongings and toddlers with them.
The government is now at a crossroads, whereby it has to grapple between the health of all citizens at large and the right to life and personal liberty of a section of society. On closer examination, it is seen the lockdown has been imposed in furtherance of the Directive Principles of State Policy (DPSP) of the Indian Constitution. This is reflected in Article 47 Part IV which provides, “Duty of the state to raise the level of nutrition and the standard of living and to improve public health.” Since these rights are non-justiciable, the regulations been formally imposed by virtue of four primary central legislations – Section 2 of Epidemic Diseases Act 1897, Sections 50-56 of The National Disaster Management Act 2005, Section 188 of The Indian Penal Code 1860 and Section 144 of The Criminal Procedure Code 1973. While the former two statutes are regulatory, the latter two penal legislations grant power to the state to initiate criminal action against any offender violating those restrictions. In the belief that these legislations adequately address the pandemic, the Centre did not find the necessity to declare a “state of emergency”. The larger question is then, how these laws operate within the constitutional framework without creating repugnancy.
The trapped workforce -:
In this regard, due to inadequate support from governmental policies, the lockdown led to guest workers illegally crossing state borders in milk trucks, containers, trucks and ambulances. This is only the tip of the iceberg, as India houses lakhs of daily wage workers. Though the lockdown has been imposed in the larger public interest, the rights of such vulnerable people are under dire threat. Recent events reveal that the Union government has allocated funds to the tune of $22 billion to aid guest workers, providing them food and other necessities. However, the government’s trajectory in this regard remains unclear since these policies were made by each state government’s discretion.
Authority flowing from colonial legislation may have legal contradictions since these statues were enacted under different circumstances and could prove inconsistent with present laws. Perhaps the question of repugnancy did not arise when the statute was enacted since there was no inconsistency with any existing legislation at that point nor was the Constitution itself in force. However, this legislation much like the IPC continues to remain in force to address a global pandemic in 2020. Exercising powers under this redundant law could prove problematic since the relationship between the state and its subjects has vastly evolved since then, as has science and technology.
The state, no doubt, needs to impose a lockdown in the interest of public health, but it holds a parallel duty towards the underprivileged, to ensure their safety and security. The state is duty-bound to take a robust approach legally, during this period to ensure the rights of such workers are not kept at abeyance. Therefore, these are testing times not just for the public, but also for the legislative machinery to check the health of our statutory corpus and the immunity of our laws.
The present lockdown would create conditions that run contrary to these obligations. The choice between COVID-19 and economic death is a hard one. The citizen, for howsoever noble a motive, has been left deprived of even the right to chose. Risking inevitable brickbats, I dare say that these were the very difficult choices that required a balancing act – which, according to the leader of one of our neighbouring countries, weighed on him in deciding against an enforced shut down.