The Union Home Ministry has been issuing guidelines to states under the Disaster Management Act regarding the nationwide lockdown and its multiple extensions. Now, Constitutional and legal experts and even serving officials in states say this is treading dangerous ground and harming the concept of ‘cooperative federalism’ as states are being compelled to gradually cede power to the centre, even on matters which are strictly State Subjects, like healthcare and law and order.
This ranges from the centre alone deciding which zones will be classified as Red, Orange or Green, making the usage of Aarogya Setu app compulsory, and deciding which activities will be permitted and which won’t be at a local level. Experts say that using the Disaster Management Act (DMA) to creep into states’ domain can be detrimental to the sharing of power between centre and states going ahead.
“The DMA is meant for the centre to requisition state administrative machinery for localized disasters, but not a national lockdown. States have powers under their respective epidemic, disaster, and other laws. However, because of political economy reasons, no state is challenging use of DMA in this situation,” said a senior official in the Maharashtra government.
For instance, the MHA guidelines for extension of lockdown to May 17, which were relased on May 2, clearly state that Ministry of Health and Family Welfare will classify the Red, Orange and Green zones in the country, and "States and UTs may not lower the classification of any district, that is included in the list of Red Zone (Hotspots) and Orange Zone districts by MoHFW".
The imposition of Section 188 in the Indian Penal Code for "disobedience to order duly promulgated by public servant" during the pandemic, was also seen by many as an overreach by the Central government, because law and order is a State subject.
“The central government, whichever party may be in power, has a tendency to over-reach and centralize powers. There is an executive over-reach. Here, the fine differences between the executive authority of the states and of the centre and the finer points of federalism are all thrown out of the window,” said PDT Achary, Constitutional expert and the former Secretary General of 14th and 15th Lok Sabha.
People who spoke to Business Standard for this story acknowledge that in ordinary times, states would protest such an interference in their domain. But they are now allowing such transgressions because of lack of revenues.
The centre has the purse strings. In a normal situation states would not yield such power. Now they are being compelled,” Achary said. The Maharashtra government official quoted above, expressed similar sentiments.
Legal experts also say that in ordinary times, such guidelines under the DMA would have invited a legal challenge.
“The legal tenability of the orders is slightly questionable and can be challenged because they cover such a broad range of issues. The Centre has gone into pretty broad range of issues including socio-economic restrictions and matters directly under state government control,” said Raman Jit Singh Chima, lawyer and Asia Policy Director at Access Now, a digital rights organization.
One of the most controversial guidelines has been on compulsory usage of Aarogya Setu, the government's contact tracing app to identify Covid-19 patients and warn others if they are in proximity of an infected person.
“The compulsory app download justification has been provided by invoking DMA. However, once lockdown is over, then disaster will be over, and DMA will no longer apply,” said Virag Gupta, Supreme Court advocate and author of "Breakdown of Law and Justice During Lockdown”.
“When first lockdown was declared at that time India was not facing a disaster. Under DMA Section 2, a disaster cannot be invoked preemptively. These guidelines from MHA are not an order and not binding on States, then how can state governments can take penal action under sec 188 of IPC. Invoking of The Epidemic (Disease) Act provisions by the state governments, has created more confusion,” Gupta said.
However, some felt that for the time being, there is no other alternative.
“Even though its overreach, it is necessary. No state wants to take on the Centre on a technical issue during COVID-19. It will lead to bad optics. And even if the state wins, it will do the exact same thing under state law anyway,” said the Maharashtra official.
The official said that wherever the instructions affect the states, MHA is careful not to issue formal directions because they can be cited and challenged. These are framed as guidance or advice, so in the spirit of cooperative federalism, states are complying.