India under Lockdown – Center invokes Disaster Management Act to contain COVID-19. What happens to State orders?

The Indian Prime Minister, Mr. Narendra Modi, while addressing the nation on March 24, 2020, announced a nationwide lockdown for 21 days to contain the spread of COVID-19.

Shortly thereafter, the National Disaster Management Authority (“NDMA”) issued an order dated March 24, 2020 under the Disaster Management Act, 2005 (“DM Act”) noting that it was satisfied that the country is threatened by the spread of COVID-19, and that there is an urgent need to bring about consistency in the application and implementation of various measures across the country while ensuring maintenance of essential services and supplies (“NDMA Order”). To this end, the NDMA directed that necessary guidelines be issued immediately.

Pursuant to the NDMA Order, and in exercise of the powers conferred under Section 10(2)(l) of the DM Act, 2005, the Ministry of Home Affairs, through the National Executive Committee under the DM Act, issued an order dated March 24, 2020 (“Lockdown Order”) for the prevention and containment of COVID-19. The Lockdown Order will be operative for a period of 21 days, with effect from March 25, 2020.

Under the Lockdown Order, all States and Union Territories need to ensure strict implementation of the guidelines set out therein, which can be accessed here.

The Lockdown Order has effectively placed India under a nationwide lockdown for 21 days. In the days leading up to the Lockdown Order, several State Governments had issued orders notifying curfews and restrictions in their respective States for containment and prevention of COVID-19 (“State Orders”). At the time of writing, the State Orders have not yet been revoked by the respective States. However, under Section 72 of the DM Act, the provisions of the DM Act will have an overriding effect over any other law or instrument issued under any other law for the time being in force. Accordingly, the guidelines issued under the Lockdown Order will, to the extent of any conflict with the previous State Orders, have an overriding effect. Therefore, all State Governments would need to comply with the guidelines issued under the Lockdown Order.

That being said, State Governments are also empowered under Section 38 of the DM Act to undertake such further measures, over and above the guidelines issued by the NDMA, they may deem necessary or expedient. Therefore, there is no restriction on States to implement further or more stringent measure than those set out in the Lockdown Order, provided such measures are not in conflict the Lockdown Order. Accordingly, measures taken by State Governments under previous State Orders will continue to have force, to the extent that they are not in conflict with the Lockdown Order.

It remains to be seen whether any State Government will implement further or more stringent measures, given the variation in the impact of COVID-19 across States.

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