COVID-19 is the first pan India biological disaster being handled by the legal and
constitutional institutions of the country. The current lockdown has been imposed under the
Disaster Management Act, 2005 (DM Act). Though the Constitution of India is silent on the
subject ‘disaster’, the legal basis of the DM Act, is Entry 23, Concurrent List of the
Constitution “Social security and social insurance”. Entry 29, Concurrent List “Prevention of
the extension from one State to another of infectious or contagious diseases or pests affecting
men, animals or plants,” can also be used for specific law making.
Ambit of the Disaster Management Act, 2005
The legislative intent of the DM Act was to, “provide for the effective management of
disasters”. The National Disaster Management Authority (NDMA) under the DM Act is
the nodal central body for coordinating disaster management, with the Prime Minister as
its Chairperson. The NDMA lays down policies, plans and guidelines for management
of disaster (S.6). Similarly, State, District and Local level Disaster Management
Authorities were established, manned by high functionaries. All these agencies are envisaged
to work in coordination.
NDMA so far formulated 30 Guidelines on various disasters including the ‘Guidelines on
Management of Biological Disasters, 2008’. The 2019 National Disaster Management Plan,
issued also deals extensively with Biological Disaster and Health Emergency. This is the
broad legal framework within which activities to contain COVID-19 are being carried out by
the Union and State governments.
Power bestowed by DM Act on Central Government and NDMA are extensive. The Central
Government, irrespective of any law in force (including over-riding powers) can issue any
directions to any authority anywhere in India to facilitate or assist in the disaster management
(Ss 35, 62 and 72). Importantly, any such directions issued by Central Government and
NDMA must necessarily be followed the Union Ministries, State Governments and State
Disaster Management Authorities (Ss 18 (2) (b); 24(1); 36; 38(1); 38(2)(b); 39(a);39(d) etc.).
Ads by optAd360
In order to achieve all these, the prime minister can exercise all powers of NDMA (S 6(3)).
This ensures that there is adequate political and constitutional heft behind the decisions made.
The present national lockdown was imposed under DM Act as per Order dated 24-03-2020 of
NDMA ‘to take measures for ensuring social distancing so as to prevent the spread of
COVID 19’ (S 6(2)(i)). Additional guidelines were issued on the same day by the Ministry
of Home Affairs, being the Ministry having administrative control of disaster management
(S. 10(2)(l)).
To alleviate social sufferings, NDMA/SDMA are mandated to provide ‘minimum standard of
relief’ to disaster affected persons (Ss 12 and 19), including relief in repayment of loans or
grant of fresh loans on concessional terms (S. 13).
Laws relevant to states:
State governments, in addition to DM Act, have used the Epidemic Diseases Act, 1897and
the various state specific Public Health Acts (eg: Tamil Nadu Public Health Act, 1939) to
deal with the crisis. Taking cue from the ‘Containment Plan for Large Outbreaks (COVID
19)’ issued by the Union Ministry of Health & Family Welfare which is the Nodal Ministry
for biological disaster, several states have issued COVID specific Regulations. Kerala, in
addition to the above, invoked legislative power under Entry 6 (Public health and sanitation)
of State List and issued ‘Kerala Epidemic Diseases Ordinance, 2020’. Overall, States have
also enough legal power in dealing with this biological disaster, including punishments for
disobeying order of a public servant and malignant act likely to spread infection of disease
dangerous to life (Ss 188 & 270 IPC respectively).
Path ahead
Undoubtedly, India’s large population poses an administrative challenge in dealing with any
disasters, especially a pandemic such as COVID-19. However, overall management can be
strengthened through three possible ways. Firstly, biological disaster of a national magnitude
necessitates a close administrative and political coordination, led by Centre and followed by
State governments, Disaster Management Authorities, and other stakeholders. In the true
spirit of DM Act and federal structure, national and state political and administrative agencies
should be more collaborative and consultative. Issues like movement of migrant labourers,
availability of food, arranging livelihoods to daily wagers, relief camps, entitlement of
statutory minimum relief, etc. that directly affects millions in the country needs special
attention. Incidentally, the ‘Report of the Task Force to review DM Act’2013 suggested that
the present structure of various authorities under the DM Act are not conducive for carrying
out the tasks it has been mandated to perform.
Secondly, success of effective implementation of the national and state decisions under the
DM Act is dependent on its ground level implementation; district administration and local
self-government institutions remains the best bet. As per mandate of DM Act (Ss 30 and 41),
a concerted effort is required to ensure that these bodies are administratively, politically and
financially empowered.
Third and finally, in times such as these, constitutional courts must play its role. There are
complaints of discrimination, police excesses, starvation, lack of medical aid etc. from
various corners of the country. Pertinently, there is bar on jurisdiction of courts (S 71) and
there is no grievance redressal mechanism under DM Act. Having assumed the role of
sentinel on the qui vive (State of Madras v. V G Row, 1952), it is obligatory on all the
constitutional courts in the country to suo motu register PILs and closely monitor the
implementation of DM Act, ensure rule of law and protection of human rights as guaranteed
under the Constitution of India
