Constitutionality of the lockdown

Against Union-imposed lockdowns

Print edition : May 08, 2020

Prime Minister Narendra Modi in his address to the nation on April 14 when he extended the government-imposed nationwide lockdown. Photo: PIB/AFP

Although the Constitution puts lockdown powers in the hands of States, it is the Centre that has been calling all the shots during the ongoing pandemic. It is hard not to see a sinister design behind this clandestine usurpation of the executive powers of States.

While the Governors of States in the United States pushed back against President Donald Trump’s attempt to brazenly invade their jurisdiction, here in India, Prime Minister Narendra Modi’s national pronouncement of the lockdown faced little resistance from the Chief Ministers of the country’s 29 States. It is a truism that the U.S. Constitution arrogates powers to States and that the Indian Constitution, with its centrist bias, tilts those powers towards the Union, however, the Union’s clandestine usurpation of the executive powers of States is troublesome even under India’s constitutional scheme for the following five reasons:

First, the Indian Constitution places the pith and substance of lockdown powers in the hands of States. The National Disaster Management Act (NDMA), 2005, was passed under the Concurrent List, meaning both States and the Union have legislative powers, but this does not imply that specific executive powers of States are usurped unto the Union by a mere declaration of a “disaster”. That can only be done by proclaiming an emergency under the Constitution.

Second, the national lockdown could have been justified as the Union’s ancillary power if it advanced the purpose of a unified test, trace and isolate strategy coupled with an exit strategy. However, India’s national average for testing is 0.2 tests per thousand (compared with South Korea’s 11 per thousand and the U.S.’ 9). The national lockdown itself could not have advanced testing capacities as medical testing remain outside its purview. Also, States record differences in testing capacities: Delhi leads the pack (seven tests per thousand) and Uttar Pradesh is the laggard.

Third, Maharashtra, Tamil Nadu and Delhi, the States that are the epicentres of the virus, account for over 50 per cent of the total number of cases in the country; 90 per cent of the cases are in 10 States; whereas seven States, including Goa, Chhattisgarh and Nagaland, have cases in the single digits. The Union provides no intelligible differentia for locking down Goa as stringently as Delhi, a State that is 2,000 kilometres away and has the highest number of cases per capita. State boundaries can be sealed to check the inter-State spread of the virus.

Fourth, States such as Kerala that have made comparatively larger investments in public health care over the decades are lumped in with States such as Madhya Pradesh that have not made those proportionate investments and, therefore, cannot deal with pandemics as well. On the principles of federalism, this not only undermines the competitive advantage of welfare States but also makes them pay a disproportionately large economic cost. This exacerbates the skewed demographic divide of India.

Fifth, in the past four weeks, COVID-19 has taken about 350 Indian lives. In that same period, extrapolating from annual records, 25,000 Indians would have succumbed to tuberculosis and about 50,000 children under the age of five would have succumbed to malnourishment. It cannot be the case that we should not stop further mortalities, but equally on the principle of proportionality, it cannot be our argument that one death is dearer to us than another. Here again, the respective State-wise distribution shows skewed numbers.

Constitutional limitations

There are only three ways in which the executive authority of the Union can exert to States: the first is by declaration of fiscal emergencies where the Union can direct States to observe the canons of fiscal propriety; the second is by declaration of President’s Rule in case of the failure of the constitutional machinery in a State; and lastly by declaration of a national emergency in case India or any part of it is threatened by war, armed rebellion or external aggression. Even if the Constitution was stretched to its widest latitude and the pandemic was made equivalent to “war” or a “constitutional failure”, it would still require a presidential proclamation. Apart from being circumscribed by constitutional limitations, the declaration might be also be optically unsavory, given past abuses.

Disaster management as a legislative field has no specific demarcation under the Constitution’s Seventh Schedule, which apportions legislative domains between States and the Union. The police, health, industries commissioners, shops and establishments inspectors are all executives of State governments. Prevention of the entry of the virus into India by quarantining foreign entrants; closing borders; and providing ammunition to fight the virus, such as provisioning of emergency funds, medical equipment, and so on, are responsibilities of the Union.

The Unions and States also share the responsibility of preventing the spread of contagious diseases. The Epidemic Diseases Act (EDA), the law that many affected States such as Delhi and Maharashtra put into operation before the Union invoked the NDMA, provides them almost unfettered powers to quell the virus within their State limits. The Union, too, has its share of obligations under the EDA, which is to ring-fence and quarantine the contagion and prevent it from entering India. Neither the EDA nor the NDMA, however, permits the handover of one’s power to another, indeed, this was not intended either. Maharashtra could not have issued quarantine orders against Chinese nationals because international borders are under the Union’s control.

In 2005, when Shivraj Patil, the then Union Minister of Home Affairs, proposed the passage of the NDMA in the Lok Sabha, he said that he anticipated that legislators would pose the federalism interrogatory: “Members may ask whether I am limiting the power, the authority and the jurisdiction of the State governments by making this law. The reply to this kind of a query would be ‘no’.” The statute as passed, unfortunately, does not make his assurance so conspicuous, and that is perhaps the lacuna that is being exploited today.

While the language of the March 24 national lockdown notification of the Ministry of Home Affairs (MHA) appears to make the lockdown mandatory, it says “state establishments shall be closed”. States such as Kerala have issued notifications “accepting” the MHA notification. This raises two difficult questions: first, if the MHA national lockdown notification was effective nationally without reference to a State’s executive, then what was the need for States to issue acceptance notes (it is not known whether all States issued one). Second, if declaring a national lockdown is in the Union’s jurisdiction, then the unilateral extension of the lockdown by some States such as Punjab and Odisha becomes questionable. Two powers cannot, for political expediency, enjoy concurrent jurisdiction. The essential rule of democracy is accountability of elected representatives. If an executive decision goes bad, affected citizens have the right to fix the blame and seek recompense. They will not be able to do that if governments are allowed to pass the buck.

The federalism conundrum

In the second week of March, the Union recommended that States invoke the EDA and about the same time notified COVID-19 as a “disaster” within the NDMA. This announcement, arguendo, was made far too late. The World Health Organisation (WHO) declared the virus a “Public Health Emergency of International Concern” on January 31, around the same time that India’s first COVID-19 case was diagnosed in Kerala. The WHO’s declaration coupled with the entry of the pandemic into India should have been enough for the Union to begin preparations on a war footing, and yet it waited for another six weeks before permitting States to access disaster relief funds. The Union’s inability to make good on its goods and services tax apportionments to States exacerbates their funds problem.

As early as February 4, the NDMA Member Secretary wrote to States to draw their attention to the National Disaster Management Plan 2019 and the Biological Disaster Management Guidelines 2008. These two documents provide for extensive early warning systems, contingency implementation, operational guidelines for sheltering in place, and so on. According to the Union’s own statement to Parliament last year, 12 battalions of the National Disaster Response Force and handlers of 12 major Indian airports are trained in the emergency management of biological disasters. If the guidelines were being followed, why were there not enough test kits, why were the entry points so porous, and why was the need for temporary shelters for migrant workers not thought of in advance? This question assumes more importance because the guiding legislative intent of the NDMA is natural calamities such as floods, earthquakes and cyclones. The first item under the heading “prevention” is evacuation and camping.

Sundry troubles

Equally troublesome is the Union’s notification ordering payment of wages (Labour Commissioners are State subjects) to benched workers without providing for adequate compensation for employers. The Constitution guarantees that no one will be denied the right to his property without the due process of law. Property includes both money and immovable property such as land. The Union’s diktats are like those of a government of a wealthy nation while it keeps a tight hold on its purse strings as if this was the India of the 1960s. Both these cannot go hand in hand.

The notion that in the fog of a pandemic anything and everything goes is palpably dangerous. Even during wars there are rules of engagement, and so the Constitution should not be allowed to be suspended during a pandemic. There is a perception that the Bharatiya Janata Party finds the pandemic propitious, something to be used to gloss over its policy failures of the past few years. Even before the pandemic hit India, the economy was at its slowest in a decade, financial institutions were failing, unemployment was the highest in 45 years and the nation was boiling in a civil strife caused by a deeply controversial citizenship law and the crackdown in Kashmir. From here on, everything can conveniently be blamed on the pandemic. The thought is morbid, but the hopeless record of Indian politicians, and their cognate responses in Hungary, Israel and Brazil where governments have usurped disproportionate powers, evokes no hope that such a sinister design would not be their guiding force.

Kabeer Shrivastava is an advocate at the High Court of Delhi.

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