3.

Whether the order issued by the Government of Rashtra was ultra vires with respect

to the provisions of the Disaster Management Act, 2005 itself.

* Power bestowed by DM Act on Central Government and NDMA are extensive. The Central

Government, irrespective of any law in force (including overriding powers) can issue any

directions to any authority anywhere in Rashtra to facilitate or assist in the disaster

management as per the power laid down in the sections including 35, 62 and 72. Importantly,

sections such as 8(2) (b); 24(1); 36; 38(1); 38(2)(b); 39(a); 39(d) substantiates the overriding

powers by stating and verifying that any directions issued by Central Government and

NDMA must necessarily be followed the Union Ministries, State Governments and State

Disaster Management Authorities.

* The order passed states that any State Government or authority or person intending to

disseminate any information relating to the aforesaid subjects, which is not part of the official

information released/provided/published by the Ministry of Health, Government of Rashtra,

shall be done only after prior written approval of the Designated Officer of the Ministry of

Health, Government of Rashtra whereas As per the act, there is no such provision which says

that apart from government departments, no other citizen is allowed to update or share news

related to a disaster.

* Any such directions issued by the Central Government and NDMA must necessarily be

followed by the Union Ministries, State Governments and State Disaster Management

Authorities. As per the scheme of the Act, State/UT Governments cannot dilute these
guidelines, they may, however, impose stricter measures than these guidelines as per the

requirement of the local areas.

* The order for guidelines for the lockdown was issued by the Home Secretary in his capacity

as the chairperson of the NEC, as per section 10 (2)(i) of the DM Act that makes the MHA as

the ministry in charge of the Covid-19 disaster. Yet, as per the Government of India's

Allocation of Business Rules (ABR), 1961 amended up to January 31, 2017, the MHA is

mandated to look after "matters relating to loss of human life and property due to all natural

and man-made calamities other than drought or epidemics"

* In theory, the DM Act provides for both Centre and states to share power and

responsibilities. “The National Disaster Plan under the DM Act sets the minimum standards

— states, if they so wish, can provide additional relief,” adds Dam. However, the ground

reality as of this pandemic seems different.

Both union and state governments have the responsibility to prevent “the extension from one

State to another of infectious or contagious diseases” [entry 29 of the concurrent list].

* 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 ministry of home affairs of the government of India. The secretary of this

ministry is ex-officio chairperson of the National Executive Committee under Section 8 of

DM Act. The committee assists the National Authority that is created under Section 3 and

headed by the Prime Minister of India.