Can the Centre bypass the states and declare a lockdown?

On Tuesday, Prime Minister Narendra Modi declared the world’s largest ever quarantine measure, putting 1.3 billion Indians under lockdown as a way to halt the spread of the coronavirus disease.

That the pandemic requires drastic measures is obvious. Nearly a dozen countries are right now in lockdown mode, hoping to break the chain of transmission of the virus.

However, the legal method by which India implemented the lockdown has raised questions.

New Delhi takes charge

As per the Indian Constitution, both the subjects of law and order as well as health lie with state governments. Thus lockdowns can only be ordered by the states. In fact, this is how lockdowns since Sunday were working, with states invoking the Epidemic Diseases Act of 1897 to shut themselves down.

However, on Tuesday, the Union government used an innovative legal measure to take charge. The law it used to back a nationwide lockdown was a central legislation called the Disaster Management Act of 2005.

Using this, it declared a shutdown of commercial, industrial and transport activity. It also directed district magistrates, who otherwise take orders from the state government, to enforce the lockdown. The notification even ordered the closure of state government offices. The Union Home Ministry followed up by ordering the states to file daily reports on how they are implementing the lockdown.

On Wednesday, the Union government also ordered states to set up control rooms to facilitate the movement of goods and services – indicating that New Delhi would micromanage the states on the issue of the lockdown.

What has happened here is something unique in India given that both the states and the Union have their own spheres of activity. For the Union to direct states on state matters such as law or health without the declaration of a constitutional emergency is unusual and, maybe, unprecedented.

Federal concerns

Naturally, this drastic move and the way it has been justified legally has raised concerns.

“The Disaster Management Act allows the Centre to lay down policies, plans and provide support,” argued T Prashant Reddy, lawyer and legal commentator. “Nothing in the act suggests you can take over the powers of the states and suspend, for all practical purposes, fundamental rights.”

Since the courts are shut and people are not allowed to leave their homes, while India’s constitutional rights are not suspended in theory, they have been suspended in practice with this 21-day shutdown given that there is little option to physically reach a court and file for legal recourse.

Apart from the damage to the federal structure, Reddy also takes issue with the lack of time limit in the Disaster Management Act. “Any time the executive takes action to deprive a person of their liberty, their needs to be a time limit in place,” he said. “India’s constitutional emergency provisions are always time bound. But this measure is not, legally. This is worrying.”

No choice

Legal commentator Alok Prasanna Kumar also identifies lacunae in the Disaster Management Act – but argues that, on the whole, the emergency nature of Covid-19 left India little choice. “Clearly the act was meant for local disasters like earthquakes,” said Kumar. “Not to impose a countrywide lockdown.”

However, Kumar points out that given that uniformity in imposing a lockdown was critical, there was little choice. “Every democracy has emergency provisions which allow other laws to be overridden,” he said. “This is one such example where the Centre has taken over some functions of the states to ensure a lockdown.”

Thrashing it out

Before using the blunt force of the Disaster Management Act, the Union government and the states had worked together. On Sunday, the Cabinet Secretary and the Principal Secretary to the Prime Minister met with the Chief Secretaries of states through a videoconference, with almost all states and the Union agreeing that India should certainly employ the device of lockdowns to halt the spread of Covid-19.

However, once this initial agreement had been reached, the modalities proved more difficult to work out.

Rather than release a statement that took every state and the Union into account, the latter went ahead and released a unilateral statement of a lockdown in 75 districts. However, since at the time the Disaster Management Act had not been invoked, only a state could order a lockdown. This meant that the Union’s 75 district list was only an advisory.

Naturally, this resulted in confusion. Many journalists took the Union advisory to be an order. Which meant that when actual orders were issued by the states, there was a mismatch.

In one case, the confusion even reached a high court:

The actual state orders, when they were issued, were often significantly different from the Union advisory. In West Bengal, for example, while New Delhi has advised only a lockdown of two districts, eventually the state government decided to go in for a much more sweeping move, choosing to shut down every town and city in the state along with six whole districts. Later on Tuesday, Kolkata extended the shut down to the entire state.

Confused coordination

At the same time, the Union government dithered on a unanimous state demand raised at the meeting: shut down domestic flights. All inter-state communication, such as flights, is controlled by New Delhi.

Things took a particularly confusing turn as the Delhi chief minister announced a ban on domestic flights later that evening – only to be overruled by the Centre a few hours later. On Monday, Kolkata then made its demand public, writing a letter – suitably released to the press – asking the Centre to stop flights coming into West Bengal.

It was only after this that the Centre announced that domestic flights would be suspended, starting Wednesday.

To sum up how India’s federal apparatus dithered before Tuesday’s sweeping announcement: While the Union government announced a lockdown without consulting states – even though it did not have the power to do so – it delayed announcing a flight ban, even though it was recommended by the states and the Centre did have the power to do so.

Now that the Union government has used a law to try and take full control, will this confusion end? It is unclear. While the Union government is issuing orders under the Disaster Management act, there is no provision for a penal provision should its orders not be followed. It might be that, like earlier, the Union government and the states will have to go through the hard grind of working out specifics.

The coming three weeks, with Indian governance put through its sternest test ever, will make clear how well this hurried measure, to employ the Disaster Management Act to take over state powers, has performed.

Financial lacuna

Even as questions are raised on the Union government-ordered lockdown, by contrast, the one area where New Delhi is free to provide immense help in the fight against Covid-19 is when it comes to financial assistance, given most taxes are collected by New Delhi. In this case, Kerala has already asked the Centre to revise the state fiscal deficit ceiling, so that financial assistance can be provided to people hurting from the lockdown.

“During social distancing, work is obstructed. We want to protect workers through direct payments, loans and social pensions, and assist employers through relaxations in tax payments, even though the state may not be able to fully compensate for the total loss of business. This is where the centre should come in and help further,” R Ramakumar, member of Kerala’s planning board and economics professor at Tata Institute of Social Sciences, told Mint.

Ironcially, even as New Delhi moves to take over state powers in the wake of Covid-19, it has done little on the economic front, even though it is part of its core area of responsibility. Even an economic task force announced by Modi more than a week back, is yet to constituted, with confusion about the move even within the Union government.

Other end of the stick

As India moves to restrict its federalism in order to tackle the immense challenges posed by Covid-19, some other federal polities are taking the opposite view.

In Pakistan, three provinces have announced lockdowns even as the federal government has been hesitant to sign-off on the drastic move. “Eighteenth Amendment and devolution has allowed the Provinces to act far more effectively and decisively than the Federal Government,” said Lahore-based lawyer Umer Akram Chaudhry.

Over in the United States, many commentators see states take more decisive action against the pandemic than the federal government. “Federalism has its uses,” said political scientist Paul Staniland, commenting on social media on the harsh criticism of the federal government by the governor of the state of Illinois.

John Daniel Davidson political editor of the conservative website The Federalist was clear the federalism was key in how the United States would battle the Coronavirus. “As the coronavirus get worse, we’re going to see a lot more actions being taken by cities, counties, and states—many more than we’ll see from the feds, in fact. That’s as it should be,” argued Davidson. “We should expect the government power that’s closest to affected communities to be the most active, while Washington, D.C., concern itself with larger problems, like developing a vaccine and controlling our borders and ports of entry.”

Former diplomat and strategic affairs expert KC Singh noted the parallels with India. “Federalism may save [the] US as governors kick-in,” he wrote, “As chief ministers may save India”.