Power of the State Government under the Epidemics Act, 1897 to inspect the persons travelling by railway
COVID-19 has impacted nearly everyone’s life
without any limitations of the borders. India’s response to the virus in the
form of lockdown has wiped off the dust from the Epidemics Act, 1897.
While going through the Act, it came to my
knowledge that Section 2 sub-section (2) clause (b) confers powers on the State
Government to inspect the persons travelling by railways and to ensure that the
passengers are not infected by any such disease. For the sake of brevity, the
Section is mentioned below,
(2) In particular
and without prejudice to the generality of the foregoing provisions, the [State
Government] may take measures and prescribe regulations for—
(b) the
inspection of persons travelling by railway or otherwise, and the segregation,
in hospital, temporary accommodation or otherwise, of persons suspected by the
inspecting officer of being infected with any such disease.[1]
This provision
prompted me to open and recall the Constitution of India which mentions that
Railway is the Central subject as per List I (Union list), entry 22.
In such a
scenario the question that arises is “When Railway is a Central subject then
how can State government derive the power to inspect the railway
passengers”?
On perusal of the Railways Act, 1989, it came to my
knowledge that the commission of railway
safety has the power of inspecting the railways. The Commission of Railway
Safety functions independent of the Ministry of Railways under the
administrative control of the Ministry of Civil Aviation and deals with matters
pertaining to safety of rail travel and train operation and is charged with
certain, inspectorial, investigatory and advisory functions as laid down in the
Railways Act, 1989. The Commission is headed by the Chief Commissioner of Railway
Safety at Lucknow.[2]
The issue still remaining unanswered because when
it is the Commission of Railway Safety that has the power to inspect the
Railways, (although functioning independently of the Ministry of Railways but
its administrative control being under the Ministry of Civil Aviation which
again comes under the ambit of the powers of Union of India) then how can State
government inspect the railway passengers. Therefore, in order to find an
answer to seemingly complicated question, I went through the definition of
Central Government in the equally old legislation, “The General Clauses Act,
1897”. As per the definition of ‘Central
Government’ under Section 3 sub-section (8) clause (b) sub-clause (i) of
General Clauses Act, 1897, Central
Government shall mean:
-in
relation to functions entrusted under clause (1) of Article 258 of the
Constitution to the Government of a State, the State Government acting within
the scope of the authority given to it under that clause".
Following the directions of the General Clauses
Act, 1897, Article 258 clause (1) and (2) answered the query with respect to
derivation of the powers of the Central Government by the State Government.
For the sake of brevity, the Article is extracted
hereunder:
“258. Power of the Union to
confer powers, etc., on States in certain cases
(1). Notwithstanding anything in
this Constitution, the President may, with the consent of the Governor of a
State, entrust either conditionally or unconditionally to that Government or to
its officers functions in relation to any matter to which the executive power
of the Union extends;
(2). A law made by Parliament
which applies in any State may, notwithstanding that it relates to a matter
with respect to which the Legislature of the State has no power to make laws,
confer powers and impose duties, or authorise the conferring of powers and the
imposition of duties, upon the State or officers and authorities thereof.”[3]
Therefore,
on reading the definition of central government under Section 3 sub-section (8)
clause (b) sub-clause (i) of the General Clauses Act, 1897 with Article 258(1)
and (2) of the Constitution of India, it can be noted that Central Government has
the power to confer its powers over the State Governments in certain cases.
- Nikhil Sukhija
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