New York Governor Andrew Cuomo is getting heaps of praise as he tackles the coronavirus pandemic in his state, despite being at loggerheads with US President Donald Trump. In India, there still exists a conundrum over the division of powers between the Centre and states to fight the pandemic. Several experts want an over-arching central law to deal with similar situations in a quasi-federal democracy where fragmented laws don’t demarcate the roles of the two.
Around three years back, the ministry of health put up for discussion the draft Public Health (Prevention, Control and Management of Epidemics, Bio-terrorism and Disasters) Bill, 2017. The draft Bill mentioned the role and responsibilities of the Centre and states in a medical emergency. The Bill, however, never saw the light of the day.
According to Article 246 of the Constitution, matters related to public order and health are mentioned in the state list. To deal with the fast-spreading pandemic, the central government took recourse to the Epidemic Diseases Act, 1897 (ED Act), and the Disaster Management Act, 2005 (DM Act). Subsequently, it announced a countrywide lockdown to contain the spread of the coronavirus, using provisions in the DM Act.
As the virus quickly spread across the country, many experts called for the imposition of an emergency, which could give the Centre wide-ranging powers. However, such a measure would have faced implementation challenges. “The Constitution does not directly mention health emergencies of the kind India is currently experiencing. However, once central legislation becomes applicable, Article 256 applies. That provision says that states must comply with central laws, and the Centre can issue directions to demand compliance,” says Shubhankar Dam, professor of public law and governance, University of Portsmouth School of Law, UK.
Illustration: Ajay Mohanty
While enforcing the provisions of the DM Act, the Centre declared the pandemic a ‘notified disaster’ to remedy the situation. The DM Act states the Centre can “take all such measures as it deems necessary”, which leaves room for it to have almost sweeping powers.
In theory, the DM Act provides for both Centre and states to share power and responsibilities. “The National Disaster Plan under the DM Act sets the minimum standards — states, if they so wish, can provide additional relief,” adds Dam. However, the ground reality as of this pandemic seems different. For instance, recently, the Centre issued a notification asking states to refrain from buying personal protection equipment, ventilators, and masks. The states can now only ensure the material supplied to them by the Centre is being distributed efficiently.
However, what is ordinarily accepted to be under the states’ purview does actually have a caveat. “Most people misguidedly believe that the rub lies in the way the powers have been distributed in the Constitution. While it is true that public health falls under the State List, this by itself does not impede the Centre from enacting legislation to prevent the spread of an epidemic,” says Aditya P Khanna, lawyer at the chambers of senior advocate Harish Salve. He adds Entry 29 of the Concurrent List provides for the “prevention of the extension from one state to another of infectious or contagious diseases or pests affecting men, animals or plants.”
However, as the DM Act isn’t specifically aimed at targeting epidemics, the Centre couldn’t use this provision to enact the law. It used another entry — “social security and social insurance; employment and unemployment” — in the List to trigger provisions of the Act. “Though the DM Act has been pressed into service and rightly so, it is envisaged primarily for natural calamities.
That's why the National Disaster Management Plan barely speaks of epidemics, let alone pandemics and processes have to be devised on the fly. What we need now is a new central law with protocols for the division of powers,” says Arghya Sengupta, founder-research director, Vidhi Centre for Legal Policy.
Some other experts differ. “The power to override states is already there in the DM Act. There is no necessity for a specific law; present laws are more than enough,” says senior advocate Arvind Datar.
Despite the mixed opinions, it does seem the only law which was meant to deal specifically with situations like this was the Epidemic Diseases Act, 1897 (ED Act). The Act gave only ancillary powers to the Centre and put more emphasis on the states to handle health crises. “The ED Act is outdated legislation,” says Rahul Unnikrishnan, advocate, Madras High Court.
Acknowledging this, the draft Public Health Bill was to repeal the ED Act. “However, this did not materialise, for reasons unknown,” he adds.
This aforesaid Bill did lay down several clear boundaries, specifying individual powers of state governments, Union Territories, the Centre, and even local governments. It also included a provision which addressed the Centre’s power to supersede the state. Experts feel when the worst of the pandemic is over, Parliament may reconsider such a Bill, so that a proper protocol between the Centre and states is set to address a public health emergency. “The time has come to switch over to cooperative federalism,” says senior advocate and former ASG Bishwajit Bhattacharyya.
How others are tackling it
Among federal countries, the response to Covid-19 has necessarily involved significant coordination among different levels of government. Here is how some others are managing the fight back:
The US: The federal government has played a limited role so far, with state governors, such as New York's Andrew Cuomo, being at the forefront. While the federal government has declared a national emergency, it is far from a central takeover. Almost all the states have individually declared emergencies, but measures vary significantly.
Australia: It has created an innovative federal model by establishing a ‘National Cabinet’, comprising the prime minister and premiers of states and chief ministers of territories. This is somewhat similar to the war cabinet created at the time of World War II. The commonwealth government (at the Centre) has declared an emergency under the Biosecurity Act, 2015, and issued regulations covering matters, such as an international travel ban. At the same time, individual states have declared emergencies.
Canada: The federal government had publicly considered invoking its emergency powers under the Emergencies Act, 1985, but did not do so. Individual provinces have declared emergencies on their own.
—Compiled by Kevin James, research fellow at Vidhi Centre for Legal Policy
 "Coronavirus brings focus on division of power between the Centre and states")
