The Constitutional Propriety of India’s COVID-19 Response from a Distribution of Powers Perspective

Akshay Aurora

Practicing Attorney
Bombay, India

Indian federalism rests on three pillars: a strong centre, co-operative federalism, and flexibility. These characteristics have now assumed a pivotal role in India’s handling of the COVID-19 pandemic, which demands a quick and efficient response from the central (or Union) and state governments. As with many other jurisdictions across the world, India’s response to the COVID-19 pandemic has involved either “lockdowns” or complete cessation of activities deemed “non-essential” – right across the country.

In India, such lockdowns (and their governing regulations) have been characterised by a concentration of power in the central government. The Ministry of Home Affairs, and not state governments, is prescribing the duration and regulation of several lockdowns. This is unlike other federal jurisdictions such as the United States or Canada, where states and provinces are determining the conditions of their lockdowns. As India enters its fourth iteration of central government-imposed lockdowns and looks towards reopening the economy, the constitutional propriety of such a nationwide lockdown becomes questionable – is the central government usurping powers not vested in it?

The Legal Framework for Combatting a Pandemic in India

The Seventh Schedule of the Indian Constitution divides powers between the Union and state governments. This schedule contains three lists, each with an inventory of the relevant domain of jurisdiction – the Union List (the Union’s exclusive domain), the State list (the States’ exclusive domain) and the Concurrent List (areas over which both levels of government can legislate). The constitutional architecture shows that when it comes to tackling the COVID-19 pandemic, the central government is far from being the singular source of governance. In fact, the State List (List II) contains the subjects of public order and public health, and the Concurrent List (List III) includes the aspect of prevention of inter-state transmission of infectious diseases. The other relevant piece of legislation is the Epidemic Disease Act, passed in 1897 to tackle the spread of the plague in India. The Epidemic Disease Act confers powers on the state governments to enact regulations necessary to address the outbreak of any dangerous epidemic. Whereas, it bestows only limited powers, restricted to the regulation and inspection of ships and vessels, upon the central government.

The central government’s authority to impose these lockdowns unilaterally, however, purports to emanate from sections 6(2) and 10(2)(l) of the Disaster Management Act (as can be seen from several Ministry of Home Affairs notifications). These provisions make allowance for the establishment of a “National Executive Committee” which can, in turn, develop guidelines or directions for the handling of the response to a given disaster. As these guidelines are binding on both the central and state governments, they effectively allow the central government to consolidate its power through the issuance of guidelines during a “disaster”. While the Seventh Schedule does not contain an entry on “disaster management”, Article 248 of the Constitution read with Entry 97 of the Union List (List I) of the Seventh Schedule confers residuary powers upon the central government. Consequently, the central government has the power to legislate over disaster management and issue executive guidelines pursuant to such power. This cannot, however, impinge upon powers the Constitution confers upon the state governments.

A perusal of the constitutional scheme suggests that state governments are solely responsible for pandemic control within their state, and the central government must provide assistance on a macro-scale, to prevent inter-state transmission of the disease. In contrast, the central government’s COVID-19 related notifications reveal an encroachment on state government powers. For example, the Guidelines accompanying the declaration of the first lockdown in India dated March 24, 2020, make regulations related to, inter alia, hospitals (explicitly covered by Entry 6 on the State List), markets (expressly included in entry 52 on the State List) and state government offices (covered by “State Public Offices” entry 41 on the State List). Similar encroachments may be found in subsequent guidelines issued along with subsequent extensions of the lockdown. In accordance with Articles 73 and 162 of the Constitution, the executive powers of the central and state government are co-extensive with their legislative powers. The central government’s guidelines, therefore, invaded on aspects of governance that fall within the exclusive domain of the state governments.

Moreover, the Constitution of India does provide a mechanism for the central government to legislate (and consequently regulate) matters covered by the State List, allowing for flexibility when matters extend beyond the purview of the state governments. Article 249 of the Constitution permits the central government to legislate on subjects contained in the State List as long as it is in the national interest – one could argue that responding to an unprecedented outbreak of a pandemic is a matter of national interest. However, to do so, the Council of States must pass a resolution, finding it is necessary, or expedient in the national interest, that Parliament ought to legislate on a matter enumerated in the State List. Such a resolution must receive the support of at least two-thirds of the members present and voting. In this instance, there does not appear to be a resolution allowing the central government to act in the manner in which it is.

The constitutional propriety of the central government’s response to the COVID-19 pandemic is questionable, which begs the question of why there has been a lack of protest from the states. But acquiescence is characteristic of Indian federalism, which relies on having a strong centre and subordinate states. In Union of India v State of Rajasthan, Indian federalism was described as “watered down”. In State of West Bengal v Union of India, the Supreme Court described Indian federalism as being where “the political sovereignty is distributed between… the Union of India and the States with greater weightage in favour of the Union”, this is very unlike the American notion of federalism. The lack of protest against the central government’s encroachment upon state powers may be attributable to this conventional understanding of the subordinate role of states within the Indian federation.

Conclusion

India’s response to the COVID-19 pandemic highlights a grim reality of Indian federalism – the absence of a declaration of “emergency” under the Constitution does not prevent the central government from consolidating power within itself. The lack of demurrer from the state governments in such times is not a function of co-operative federalism or the flexibility of Indian federalism, but detrimental passivism in times in which governmental accountability is paramount. While one might argue that tackling the outbreak of COVID-19 is of national importance, and accordingly requires the centre to act authoritatively, any response to such novel situations must not impinge on the constitutional rights of the states in the absence of their consent.

Akshay Aurora is a lawyer practicing at the High Court of Judicature, Bombay, India.

Suggested Citation: Akshay Aurora, “The Constitutional Propriety of India’s COVID-19 Response from a Distribution of Powers Perspective” IACL-AIDC Blog (2 June 2020) https://blog-iacl-aidc.org/2020-posts/2020/6/2/the-constitutional-propriety-of-indias-covid-19-response-from-a-distribution-of-powers-perspective