A provision in the recently promulgated Kerala Epidemic Disease Ordinance 2020 is feared to serve as a refutation of the State government’s own objection to the Karnataka government’s closure of the Kasaragod-Mangaluru National Highway in the wake of the lockdown.
According to legal circles, the Constitutional validity of Section 4(2) (C) of the Ordinance empowering the State government to seal the State borders is doubtful. The provision has been incorporated with a view to preventing the spread from one State to another of infectious or contagious diseases, they say noting that prevention of the extension from one State to another of such diseases is a subject falling under the concurrent list of the Constitution.
“Section 4(2) (C) of the Ordinance is in conflict with section 8B of the National Highways Act, 1956, a Central legislation,” said T. Asaf Ali, former Director General of Prosecutions in the State.
Under the Article 254(2) of the Constitution, if the law made by a State legislature with respect to any of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament, then the prior assent of the President is required, he noted.
Legal scrutiny
The Section in the Ordinance is likely to come under legal scrutiny in the wake of the Kerala High Court Division Bench’s order on April 1 directing the Central government to ensure the removal of the blockade of the NH connecting Kasaragod and Mangaluru enforced following COVID-19 pandemic.
The court, which passed the directive on a public interest litigation, observed that the arterial roads that connect Mangaluru and Kasaragod, are part of the NH network and, therefore, it was the duty of the Central government to ensure that the these roads were kept free of blockades.
According to the legal sources, the High Court has unequivocally ruled that State government has absolutely no right or authority to seal state border by blocking NH which is under the jurisdiction of the Centre.
