Are orders issued in Manipur for managing COVID-19 legal?
The role of the governor in the implementation of the Disaster Management Act 2005 is marginal and all such orders are not per se government orders or in other words it should not be executive orders but rather statutory orders.
After WHO declared COVID-19 spread as pandemic on March 11, 2020, India hurriedly amended the Disaster Management Act 2005 by an Ordinance and declared the pandemic as a disaster on March 14. This law is a very powerful law and all actions to contain the spread of the disease are to be issued under the provisions of this Act.
Unfortunately, in Manipur all orders purportedly issued under the Act which was to be signed by the state Executive Committee chairman was signed by the chief secretary. And all orders issued under the provision of the Act were also issued in the name of the governor.
The role of the governor in the implementation of the Act is marginal and all such orders are not per se government orders or in other words it should not be executive orders but rather statutory orders.
Orders issued under the provision of a law are statutory orders which have the force of law, unlike executive orders. The orders should be simply headed as “ORDERS” rather than “ORDERS OF THE GOVERNOR” as incorporated in all the orders.
It would be appropriate to mention some provision of the law to bring clarity. Under Section 14 (1) of DM Act 2005 every state shall by notification in the official gazette establish a State Disaster Management Authority and under sub-section (2) it was laid down that it shall consist of the Chairperson and such number of other members not exceeding nine of which the Chief Minister shall be the Chairperson who can nominate the other 8 members and the Chairperson of the State Executive Committee who under sub-section (4) shall be the Chief Secretary. Under Section 17, an Advisory Committee can be formed to advise the Authority. Under Section 19(3) the Chairperson of the State Authority shall in case of emergency have the power to exercise all or any of the powers of the State Authority but the exercise of such powers shall be subject to ex post facto ratification of the State Authority.
Under Section 20 (1) the State Government shall constitute a State Executive Committee with the Chief Secretary as the Chairman and four other Secretaries of the Government. Similarly at the District level, there shall be a District Disaster Management Authority under Section 25 where the Deputy Commissioner shall be the Chairperson, elected representative of the local authority who shall be the Co-chairperson, the CEO of the District Authority, the SP the CMO, and not more than two other DLOs. The Government shall appoint an officer not below the rank of ADM as the CEO of the District Authority. In other words, the local bodies should be represented in the District Authority.
In the case of Manipur, there is no report of the state authority conducting any of its meetings; nor that of the State Executive Committee or the District Authority and the local bodies both urban and rural have been totally sidelined. It seems that the statutory bodies have been bypassed, in utter violation of the Act, under which the disaster is being fought. It seems that one Consultative Committee which at the most cannot be treated even as the Advisory Committee seems to be taking all the decisions and as per the information, none of the action taken till now has been approved or ratified by the State Authority.
To cite one example, the recent orders dated June 8, 2020 allowing shops to open in the Thangal and Paona bazars in a staggered manner was issued in the name of the governor and was in exercise of the powers conferred by Section 20 (2) (a) which is not a relevant provision as this provisions was for the chief secretary being the chairperson of the State Executive Committee.
All such orders should have been issued invoking the powers conferred under Section 24, or to paraphrase the orders were issued invoking incorrect provisions of the law and hence is legally untenable. The orders was signed by the “Chief Secretary”, whereas it should be by the “Chief Secretary and Chairperson of Manipur State Executive Committee”. The Chief Secretary per se has no powers to issue any order under the Act, he can do so only as the Chairperson of the Executive Committee. Executive and statutory powers are two different things.
Further, the state government cannot modify orders issued by the DM under CrPC 144 as it is a statutory order only subject to modification by a higher authority under the relevant law; and under the law the State Government has powers only to extend the restrictions beyond two months but not exceeding six month and cannot modify or quash any such orders issued by the DM. It should be made clear whether the restrictions on the movements now imposed are under 144 CrPC or under the DM Act. Under DM Act all types of orders can be issued to contain the pandemic.
Similar faux pas have been serially and for the author who was a former bureaucrats, to comment on this in public is to be frank quite embarrassing but hints to some of his former colleagues could not elicit any positive response. Either they were too timid to raise it or their views were disregarded. Either way, it does not auger well for the state as any orders purportedly issued under the Act can be challenged in the law court and it will be extremely embarrassing for the State if adverse remarks are observed by the judiciary.
Another issue which is confounding the author is the daily reports in the TV that so many persons have been apprehended for violating the lawful orders under the DM Act and penalty was imposed by an Executive Magistrate. The DM Act does not confer any power to the Executive Magistrate to fine or impose penalty and hence one have to follow the provisions of the CrPC. Executive Magistrate including the District Magistrate are mainly responsible for preventive intervention and not for imposing penalty. This rest with the Judicial Magistrate and a simple reading of Chapter II and III of the CrPC should make it crystal clear. Yes penalty can be imposed, which is quite heavy as there is no limit of the fine, under Section 51 of the DM Act but the due process of law need to be followed. As the penalty imposed is trifling, people just do not want to waste time to prefer an appeal; however it is learnt that a PIL in this regard had already been filed before the Hon’ble High Court of Manipur.
It seems that the Manual of Office Procedure which was a bible for all employees of the government seems to have been thrown in the wind as the recent Film Policy was also notified in the name of the Governor. The draft Policy should have been notified for public comments and once comments were received and considered, the Policy has to be adopted through a Resolution. To attain the objects laid down in the Policy many specific orders/notifications need to be issued. This is not the only Policy “Notified” and not “Resolved”; many others have preceded it. The blame cannot go to an individual but it is a sign of the deterioration to the regards for laid down procedure. There is indeed a systemic failure in the act of governance, with the principle of collective responsibility being overtaken by individual desire or wish.
Coming back to the various orders issued in relation to the management of the pandemic; it would be prudent to correct all such orders to make it legally viable rather than waiting for these to be challenged. It will be illuminating for our bureaucrats to see the order issued by the Union Home Secretary and Chairperson National Executive Committee in this regard and learn from the Union Government.