The official admitted that the Covid-19 situation was also an unprecedented constitutional situation. “The DMA gives the Centre wide and vague executive powers. Parliament cannot legislate on state subjects like law and order, health etc during a disaster, so the Centre should not be claiming those executive powers,” the official said.
For instance, the MHA guidelines for extension of lockdown
to May 17, which were relased on May 2, clearly state that Ministry of Health and Family Welfare will classify the Red, Orange and Green zones in the country, and "States and UTs may not lower the classification of any district, that is included in the list of Red Zone (Hotspots) and Orange Zone districts by MoHFW".
The imposition of Section 188 in the Indian Penal Code for "disobedience to order duly promulgated by public servant" during the pandemic, was also seen by many as an overreach by the Central government, because law and order
is a State subject.
“The central government, whichever party may be in power, has a tendency to over-reach and centralize powers. There is an executive over-reach. Here, the fine differences between the executive authority of the states and of the centre and the finer points of federalism are all thrown out of the window,” said PDT Achary, Constitutional expert and the former Secretary General of 14th and 15th Lok Sabha.
People who spoke to Business Standard for this story acknowledge that in ordinary times, states would protest such an interference in their domain. But they are now allowing such transgressions because of lack of revenues.
Achary said that the central government knows that it has the financial resources. Controlling a pandemic requires enormous amount of money and all the states are now turning to the centre to provide that money. “He who plays the pipe calls the tune.
The centre has the purse strings. In a normal situation states would not yield such power. Now they are being compelled,” Achary said. The Maharashtra government official quoted above, expressed similar sentiments.
Legal experts also say that in ordinary times, such guidelines under the DMA would have invited a legal challenge.
“The legal tenability of the orders is slightly questionable and can be challenged because they cover such a broad range of issues. The Centre has gone into pretty broad range of issues including socio-economic restrictions and matters directly under state government control,” said Raman Jit Singh Chima, lawyer and Asia Policy Director at Access Now, a digital rights organization.
One of the most controversial guidelines has been on compulsory usage of Aarogya Setu, the government's contact tracing app to identify Covid-19 patients and warn others if they are in proximity of an infected person.
“The compulsory app download justification has been provided by invoking DMA. However, once lockdown is over, then disaster will be over, and DMA will no longer apply,” said Virag Gupta, Supreme Court advocate and author of "Breakdown of Law and Justice During Lockdown”.
“When first lockdown was declared at that time India was not facing a disaster. Under DMA Section 2, a disaster cannot be invoked preemptively. These guidelines from MHA are not an order and not binding on States, then how can state governments can take penal action under sec 188 of IPC. Invoking of The Epidemic (Disease) Act provisions by the state governments, has created more confusion,” Gupta said.
However, some felt that for the time being, there is no other alternative.
“Even though its overreach, it is necessary. No state wants to take on the Centre on a technical issue during COVID-19. It will lead to bad optics. And even if the state wins, it will do the exact same thing under state law anyway,” said the Maharashtra official.
The official said that wherever the instructions affect the states, MHA is careful not to issue formal directions because they can be cited and challenged. These are framed as guidance or advice, so in the spirit of cooperative federalism, states are complying.