On March 24, the Modi government announced a 21-day nation-wide lockdown in order to combat Covid-19.
Not only was this measure drastic in scope, it was legally unprecedented.
The Modi government had chosen an unusual legal path to derive its power to call for such a measure: the Disaster Management Act. But there were significant problems with this approach, as Scroll.in reported at the time.
For one, the act was meant for localised, natural disasters not a health emergency caused by an infectious disease. (For this, a specific legislation already existed: the Epidemic Disease Act of 1897). Second, the power to implement lockdowns – health and law and order – were explicitly marked to the states in India’s 1950 Constitution. How then did New Delhi appropriate this power?
To get around this, the legal provision under which the Union has applied the Disaster Management Act has legally got nothing to do with disease at all – in has instead been activated under the head of “social security and social insurance; employment and unemployment”.
To make matters even more complicated, the Union government had not discussed the lockdown with the states. This despite the fact that it was the states that had to actually implement it once the Union government had made the announcement.
At the time, states did not voice any objection to this Central government-led lockdown, simply because every state was on board with the idea anyway. In fact, most states had announced lockdowns before Modi.
Yet, as the lockdown proceeded, many states diverged from the Modi government’s lockdown order in ways that suited their own conditions.
The state of Punjab was first off the block just five days after the country-wide lockdown began, allowing industrial units and brick kilns to commence production. West Bengal cited massive losses to its dairy industry to allow allow the state’s famous sweet shops to reopen. Karnataka soon followed suit, allowing confectionary items to be added to the list of essentials that state residents can sell and purchase even during lockdown.
Kerala and Meghalaya moved to allow home delivery of alcohol in March, while on Monday, Assam and Meghalaya took a decision to let liquor shops open. While the Kerala order was stayed by the Kerala High Court, the court itself did not reference the March 24 Union order.
On Monday, Kerala produced a long list of commercial activities that would be exempt from the lockdown, including the making of beedis.
None of this – from sweets to alcohol to beedis – conforms to the Central goverment’s March 24 order. Yet, given that states are in charge, it is their decisions getting implemented on the ground.
In fact, at least on two separate occasions the Central government wrote to the states asking them to stick to its list of exempt essentials and not add their own. “It has been noticed that some state governments/UT administrations are allowing exceptions beyond what has been allowed under lockdown measures by the [Union] Ministry of Home Affairs,” read the Modi government’s letter to all states on April 1. On April 10, the Union wrote to West Bengal complaining about an “increase in the number of exceptions being provided by the State government”.
However, neither did the states cut back on their exceptions in the wake of these letters, neither did the Union government take any action beyond writing to the states.
In fact, rather than the states bending, it was the Union government that seems to have changed tack as the country heads into phase 2 of the lockdown. As opposed the the sole leadership role the Union government envisaged for itself on March 24, the second phase of lockdown is seeing the Centre take states on board to a far greater degree when it comes to decision making.
For example, while the first 21-day containment measure was announced without asking the states at all, Prime Minister Narendra Modi has held public consultations with chief ministers before announcing the next phase of lockdown. In his speech on Tuesday, Modi made it clear that his extension of the country-wide lockdown to May 3 was taken only after discussing with the states. “In fact many of them [states] have already taken the decision to extend it,” pointed out the prime minister as a way to justify his decision.
As many as ten states – Tamil Nadu, Arunachal Pradesh, Mizoram, Meghalaya, Odisha, Punjab, Maharashtra, Telangana, West Bengal and Karnataka – as well as the Union Territory of Puducherry, had already announced the continuation of the lockdown even before Modi’s speech on Tuesday.
While states had announced lockdowns till April 30, the Union government extended that marginally by three days, citing the fact that May 1-3 were holidays anyway, reported ANI. May 1 is a public holiday and the next two days are Saturday and Sunday.
As part of this trend, the difference between states on their lockdowns is set to diverge even further that what it was under the first phase. Haryana, for example, has announced that the state will be divided into zones based on how many coronavirus cases regions have.
As part of this set-up, the first challenge states and the Union government will have to face is that of migrant workers. While states which host migrants would like them to leave, New Delhi and the migrants’ own home states are not too keen to see them travel back (and potentially carry back the coronavirus with them).
This faultine already erupted on Tuesday, with panicked migrants converging at a train station in Mumbai city only a few hours after Modi spoke. A Maharashtra minister then blamed New Delhi for lack of planning while the Bharatiya Janata Party faulted the Maharashtra government.
This is part of a series Coronavirus and Indian federalism that looks at the critical Centre-state relationship in the wake of India’s unprecedented moves to combat the Covid-19 pandemic. Other pieces from the series can be read here, here, here, here and here.