The Seventh Schedule of the Indian Constitution outlines the division of powers between the central government and state governments by categorizing subjects into three lists: the Union List, the State List, and the Concurrent List. Each list contains specific subjects on which the respective governments can legislate and exercise executive authority. The distribution of powers is intended to maintain a balance between the central authority and the autonomy of state governments.
The Centre has legislative and executive powers over entries in the Union List whereas States have similar powers over State List entries. Both the Centre and the States have powers over Concurrent List entries. These lists are contained in the Seventh Schedule to the Constitution.
Due to Entries 1 and 6 of the State List, it is the States that have legislative and executive powers over public order and public health, as mentioned above. The Centre only has powers over preventing the spread of diseases from one State to another (Entry 29 of the Concurrent List).
When it comes to disaster management, the Seventh Schedule does not explicitly include an entry dedicated to "disaster management." As a result, the legislative basis for enacting laws related to disaster management becomes a matter of interpretation within the existing framework of the schedule.
In this context, the Disaster Management Act, 2005 (DM Act), which was passed by the central government, relies on the legislative competence provided by the entry in the ; empConcurrent List related to "Social security and social insuranceloyment and unemployment." This entry grants both the central and state governments the authority to legislate on matters pertaining to these subjects.
However, it's worth noting that this entry might not comprehensively cover all aspects of disaster management. As disasters encompass various dimensions beyond social security and employment, there has been debate about whether this entry provides a suitable legislative basis for a comprehensive disaster management law.
The National Commission to Review the Working of the Constitution in 2002 and the Second Administrative Reforms Commission in 2006 pointed out that the existing Concurrent List entry does not cover all aspects of disaster management and that there is an overlap with certain matters under the State List. This situation has led to concerns that the Centre might exceed its authorized powers.
To avoid any potential encroachment on the powers of the states, the Commissions proposed the inclusion of a new entry in the Concurrent List that specifically addresses the "Management of Disasters and Emergencies, Natural or Man-made." This recommendation was also endorsed by a Ministry of Home Affairs Task Force that reviewed the Disaster Management Act in 2013.
However, despite these recommendations, the addition of such an entry was not implemented. Consequently, in the absence of a dedicated entry for disaster management in the Concurrent List, the actions of different government bodies during a health crisis like the Covid-19 pandemic must be guided by a careful interpretation of the existing distribution of powers between the Centre and the states as outlined in the Constitution. This means that government actions must align closely with the constitutional scheme to ensure that the balance of powers is maintained and respected.
The Epidemic Diseases Act of 1897
The Epidemic Diseases Act of 1897 is a legislation that primarily empowers state governments and local authorities to manage epidemic diseases within their territories. The central government's role is typically more ancillary and comes into play in certain specific circumstances, especially those involving international borders.
Role of State Governments:
Special Powers: The Act grants powers to state governments and local authorities to take special measures to control and manage the outbreak of epidemic diseases.
Notification of Epidemics: Under the Act, when an epidemic breaks out or is likely to break out, the state government or local authorities can take necessary measures to prevent the spread of the disease. They can also declare affected areas as "infected areas."
Authority of Government: The Act confers authority upon the state government to prescribe regulations and guidelines for the prevention and containment of epidemic diseases. It enables the government to take action to ensure that adequate medical facilities are provided to affected individuals.
Punitive Measures: The Act empowers authorities to take punitive measures against individuals who violate the regulations prescribed under the Act. These measures may include imposing fines or other penalties.
Quarantine and Isolation: One of the significant provisions of the Act relates to the power to implement quarantines and isolations. Authorities can isolate infected individuals or place them in quarantine to prevent the spread of the disease.
Inspection of Suspected Vessels: The Act grants powers to government officials to inspect ships arriving at ports and detain individuals if there is reason to believe that they might be infected with an epidemic disease.
Protection for Actions Taken in Good Faith: The Act provides immunity to government officials and others for actions taken in good faith under the provisions of the Act.
Central Government Coordinating National Response: While the primary authority for managing epidemic diseases lies with the states, the central government can coordinate a unified response in cases where the epidemic has national implications. It can issue guidelines and advisories to states, providing a centralized approach to managing the outbreak.
Resource Allocation and Assistance: The central government can allocate resources, provide financial assistance, and offer technical expertise to states when dealing with severe epidemic outbreaks. This assistance can enhance the capacity of states to effectively manage and control the disease.
Legal Framework and Oversight: The central government can enforce quarantine and isolation measures at the national level, particularly when it concerns diseases with international implications. It can also ensure the standardization of legal measures and guidelines across states.
Research and Collaboration: The central government can facilitate research, collaborate with international organizations, and provide expert guidance to states on disease control and management strategies.
International Borders: The central government's involvement is particularly significant when it comes to managing diseases that have the potential to cross international borders. The act allows the central government to inspect ships arriving at Indian ports and detain individuals suspected of carrying infectious diseases.
Either government can invoke the ED Act.
In summary, while the central government's role in the Epidemic Diseases Act is limited and residuary, it becomes more prominent in situations involving international borders and national-level coordination. The primary authority and responsibility for managing epidemic diseases within their respective territories lie with the state governments and local authorities, in accordance with the principles of federalism in India.
The Epidemic Diseases Act was initially framed to address the unique challenges posed by the prevalence and rapid spread of infectious diseases during colonial times. Over the years, its provisions have been used in various situations to address outbreaks of diseases like cholera, plague, and more recently, the Covid-19 pandemic.
During the Covid-19 pandemic, some state governments in India invoked the Epidemic Diseases Act to implement measures such as lockdowns, quarantines, and travel restrictions to contain the spread of the virus. However, the Act's colonial-era origin and the limited scope of its provisions have led to discussions about the need for more comprehensive and modern legislation to address contemporary health emergencies.
While the Epidemic Diseases Act specifically addresses epidemic diseases, the central government's role in disaster management, including health emergencies, is also covered under the broader framework of the Disaster Management Act (2005). The central government can invoke this act to coordinate disaster response efforts, including health emergencies.
Disaster Management Act, 2005 (DM Act), was invoked in March 2020 to impose a blanket lockdown to ensure “consistency in the application and implementation of various measures across the country”. Accordingly, guidelines were issued for state governments to follow.
However, even before the DM Act was invoked, several State Governments had used their powers under the Epidemic Diseases Act, 1897 (ED Act) to deal with the Covid-19 outbreak. Although public order and public health are subjects that lie with the States as per the Indian Constitution, the Centre used the DM Act to effectively bypass States and assume complete control.
