The Centre or State: Who Should Respond to Biological Disasters?

The Centre or State: Who Should Respond to Biological Disasters?

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Volume 14 Issue 4 ()

The COVID-19 pandemic obligated governments across the world to adopt measures for containing the spread of the virus while preserving socio-economic stability. The Constitution of India, 1950 (‘the Constitution’) vests upon the State governments the exclusive authority on all matters relating to public health. Nevertheless, the Central Government spearheaded the response to the COVID-19 outbreak, invoking the provisions of the Disaster Management Act, 2005 (‘DM Act’). In this paper, we challenge the authority of the Parliament to regulate biological disasters through the DM Act on the basis that it violates the separation of powers envisaged under the Constitution. Upon a holistic review of all the legislative entries in the Constitution that may confer authority upon the Parliament to legislate on the subject of biological disasters, we conclude that the Parliament did not have the power to legislate upon the said subject. Hence, any matter arising out of biological disasters should be excluded from the scope of the DM Act. However, in the current scenario where both DM Act and the Epidemic Diseases Act, 1897 (‘ED Act’) apply, we use principles of statutory interpretation to address the conflicting provisions of these two statutes relating to the management of biological disasters. We thereby conclude that the ED Act, which accords primacy to the State governments in tackling a biological disaster, should have been applied instead of the DM Act to manage the COVID-19 pandemic. We propose that the DM Act’s provisions should be reasonably applied to events within the meaning of ‘disaster’ under the statute while leaving out the management of biological disasters, which are specifically covered within the scope of the ED Act. This is based on the principle of ‘generalia specialibus non derogant’ and the rationale that from a constitutional and policy perspective, the State governments are the appropriate authorities to manage biological disasters.

Cite as: Tasneem Zakir & Satrajeet Sen, The Centre or State: Who Should Respond to Biological Disasters?, 14 NUJS L. Rev. 574 (2021)