Constitutionality of Disaster Management Act, 2005 on the Touchstone of Federalism During Covidǧ19 in India

Abstract

As per 7th Schedule of Constitution of India, 1950 there is sub-division of three lists namely Union list, State list and Concurrent list, which gives a detailed insight of powers of law making with both Centre and State in our country. Due to this both Centre and State have their exclusive domain wherein they can exercise their law-making power. During this exercise of power, which has been so specifically demarcated, can there be dispute of any kind? Answer is yes, Centre has often encroached upon exclusive domain of State subject matters by passing laws on such subject(s). The prominent example of it is the exercise of power under the Disaster Management Act, 2005 which came to be invoked by Centre for issuing guidelines binding on States in light of prevention of global pandemic being COVID-19. Public health and sanitation are a specific field of legislation under Entry 6 of List II, implying that States have exclusive power to legislate upon matters wherein public health is an issue, however despite of that Central Government laid down an array of guidelines during the COVID-19 pandemic directing States to enforce those guidelines. In this article, the main focus will be regarding constitutionality of those guidelines issued by Centre and the interpretation laid down by the Judiciary in regards to similar incidents. Furthermore, the history of enactment of Disaster Management Act, 2005 and how the powers exercised under the guise of it, will be analyzed in order to arrive at a reasonable conclusion in relation to the present issue. Moreover, upon this premise of issuance of guidelines by Centre under the DMA Act, 2005, the Indian Federalism would be discussed upon the touchstone of judgements delivered by Hon’ble Supreme Court in said regard and by briefly comparing same with other federal jurisdictions such as United States. The entire Paper will be a blend of descriptive, historical, comparative and analytical approach.