Law making powers under article 246 of our constitution - Need for new pandemic specific laws

Our Constitution is federal in nature and declares it as Union of States. The term ‘federal’ would derive its objectives when there are separation of powers between the Union and the State. Article 246 had specifically categorizes this principle to emphasize that  laws can be made both by the Parliament & State Legislatures in the interest of the changing needs of the society.

COVID19 gave the world a new experience and taught the global community enforcing and envisaging a new world order. Our country is not an exception where the challenge is bigger with a population of about 1.36 Billion.  It is pertinent to state that at the time of health emergencies and lockdowns both the life and livelihood of citizens is put to serious threat due to loss of Income sources resulting in the deprivation of all the three basic entities of  livelihood. Governments at State and Centre put their best initiatives using all their resources at command to ensure that the pandemic is put to check. However there are legal and administrative constraints in the execution of many relief measures in the absence of a specific Law to ensure autonomy of States and its limitations. Though under the Constitution of India both the Central and State Governments are competent to enact legislations, there is always a scope to amalgamate the lists both from Union and Concurrent to make the subject matters exclusively under the purview of the State.

If we look into the pattern of spread of this Pandemic in our country, the major factors that were challenging the Governments (State or Centre are (i) Inflow of Visitors from abroad (ii) Quarantine (iii) Contact Tracing (iv) Community Spread (v) Identification of Hotspots (vi) Formation of Containment zones (vii) Supply of essential Commodities (viii) Supply of PPEs to Doctors, Paramedics, Sanitary workers, Volunteers (ix) Hospital Infrastructure (x) Medical Care & Treatment of the Infected (xi) Awareness of Pandemic (xii) Implementation of Lockdown Guidelines at various stages.(xiii)Migration of workers.

Though Government deployed few provisions of The Epidemic Diseases Act, 1878 and Disaster Management Act, 2005 in its’ implementation of lockdown guidelines there is a tremendous scope to explore a common law exclusively to deal such pandemic situations integrating or shuffling specified listed items under the VII Schedule of our Constitution in the Management of such Pandemics in future too on the basis of the challenges surmounted during this current situation.

Article 246: Subject-matter of laws made by Parliament and by the Legislatures of States.

1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the “Union List”).

2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the “Concurrent List”).

3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the “State List”).

4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included [in a State] notwithstanding that such matter is a matter enumerated in the State List.

Hence, Article 246 empowers the Parliament to make suitable laws on any of the matters enumerated in List I, I & III. Under the Seventh Schedule. Under these powers specified both Centre may enact a Pandemic Specific Laws which must be made applicable during Global Health Emergencies and Natural Calamities to ensure that the States are given adequate Powers and Responsibilities to Mange and Combat the hard situation. The Law can be applicable at all times during the currency of the announcement of National Disaster till the situation is put under control. The following listed items under the Seventh Schedule of our Constitution may be reorganized to entrust Autonomy to the States.

These Items were directly or indirectly connected with the Management of this Pandemic.

Conclusion

Life and Livelihood of citizens are matters of great importance to any Economy. Now there is a desperate need to make new laws since both Union and State Legislatures in order to legislate any Pandemic Specific laws by consolidating the items spread across to Union List and Concurrent List in order to empower the States with exclusive and absolute powers to manage such Pandemics that the world may encounter in future. This is the present desperate need of the hour to infuse more responsibility on the States through absolute empowerment.

Inadequacy in-laws always deter efficiency in the Management of constraints. Though State Legislatures are empowered to legislate on the matters enumerated in the Concurrent List, they are many inherent factors envisaged to enact the legislation on these matters in case of repugnancy and inconsistency with other laws on the land. New Laws will always be dynamic to respond to emergency scenarios instead of relying on age-old enactments which appear innocuous at the implementation level.