The Act was enacted by invoking entry 23, namely, “Social Security and Social Insurance; Employment and Unemployment” in Concurrent List of the Constitution of India. Hence, it empowers union and state governments to frame rules and issue executive orders.
By V N Alok
Pandemics call for the intervention of public health which is the constitutional mandate of local self governments, both panchayats and municipalities in rural and urban areas respectively. In a federal set-up under medical emergency situation, it becomes the liability of the federal and state governments to cooperate and iron-out differences in the prevention of disease outbreaks.
Given the seriousness due to the outbreak of COVID-19 pandemic, the Government of India imposed, on 24 March, a three-week national lockdown (extendable) by invoking provisions of National Disaster Management Act, 2005 (DM Act). The Act was enacted by invoking entry 23, namely, “Social Security and Social Insurance; Employment and Unemployment” in Concurrent List of the Constitution of India. Hence, it empowers union and state governments to frame rules and issue executive orders.
In fact, the subject ‘disaster management’ is not specifically mentioned in all the three lists of the Seventh Schedule of the Constitution. Therefore, Parliament exercised its power to enact a law on the subject. Other entries e.g., ‘Public Order’ and ‘Public Health’ were included in the State List when the Constitution of India was framed. Further, consequent upon the 73rd and 74th Amendments to the Constitution in 1993, ‘Public Health’ found place in the 11th and 12th Schedules. As a result, panchayats and municipalities have been assigned civic powers to render ‘public health’, to the residents in their respective jurisdictions.
Rightly so, people’s own democratic and cooperative organizations at the local level are arguably the best to render local public goods including preventive and prophylactic measures like inoculation and vaccination. The main functions of these local self government is to make the people understand what change or innovation benefits them, why it benefits them and how it can be introduced. It is for the community to participate in all the activities which lead to such change or innovation.
These institutions of local self governments, both panchayats and municipalities, brought into the statute book to promote better living for the whole local community with the active participation or even on the initiative of the community. Here, the word ‘community’ means a local community in a geographical rural or urban area cutting across caste, religious and economic differences.
Ironically, these key institutions have not found their rightful place in the DM Act. A passing reference is made to ‘local authorities’ under section 41 of the DM Act. As per the section, these ‘local authorities’ including panchayats, municipalities and cantonment boards are mandated to carry out “relief, rehabilitation and reconstruction activities” only under the “directions of the District Authority”. The DM Act stipulates, under section 25, the constitution of ‘District Disaster Management Authority’ under the stewardship of district collector/magistrate who is assisted by the Chairperson of the district council in the capacity of co-chairperson of the district authority.
Further, section 31 of the DM Act provides for ‘district plan’ by the district authority in consultation with local authorities subject to approval by the state authority. The provision is akin to article 243 ZD, a mandatory constitutional provision, which envisages ‘district planning committee’ (DPC) for spatial planning, infrastructure development, environmental conservation etc. State governments have provided the provision of DPC in their respective Acts but seem to be reluctant to make them operational. As a result, the process of decentralized planning is hampered and associated capacity development is completely denied.
On the other hand, the DM Act is unambiguous in assigning powers to union and state governments. Section 62 of the DM Act stipulates extraordinary powers to the Union government by which any authority in union ministries, statutory bodies, state governments etc is bound to take direction from the nodal ministry of the central government. In addition, a national plan is drawn up under Section 11. Accordingly, states have been warned early on 4 February 2020 by referring National Disaster Management Plan 2019 and the Biological Disaster Management Guidelines 2008.
At the state level under section 14, a ‘State Disaster Management Authority’ is required under the chairmanship of the Chief Minister of the State. This authority is assisted by a State Executive Committee headed by the Chief Secretary of the State. The committee prepares the State Disaster Management Plan after following the guidelines of the National Authority and a select consultation with the district and local authorities.
Penal provisions in Chapter 10 of the DM Act pave the way of the security personnel to take coercive measures against the offenders. However, medical professionals are not covered under this provision. Recent incidents of stone pelting and misbehaviour with doctors and nurses compelled the Government of India to introduce penal provisions protecting healthcare service personnel and their property against violence. For the purpose, an Ordinance has been promulgated on 22 April to amend the Epidemic Diseases Act, 1897 in the light of the pandemic situation of COVID-19. This could be a permanent provision to maintain the morale of the healthcare professional and discipline miscreants.
It may be observed that the pandemic till date is being controlled through centralized institutional arrangements with remarkable cooperation of all state governments except West Bengal. Public servants and security forces have been enforcing lockdown. These arrangements, in the exit plan, will gradually give way to the decentralized responsibilities of local governments including panchayats and municipalities. Sooner it shifts better it will be.
Prime Minister Modi has already envisaged such a shift towards localization and decentralized planning. On 14 April, he prominently pronounced the role of local self governments to combat COVID-19 a month later on 12 May he urged people to be “vocal about local”. The contagion can only be prevented by changing human attitudes and behaviours. Local governments and community, closest to the residents, are best placed to bring this change and inculcate social/physical distancing on a sustainable basis. Hence, the role of local governments must be prominent, at least, in the DM Act.
The columnist is Associate Professor in Indian Institute of Public Administration, New Delhi. Views expressed are the author’s own.