ATTACK ON INDIAN FEDERALISM IN LIGHT OF COVID-19: A CRITICAL APPRAISAL

INTRODUCTION

The concept and nature of federalism have been adopted by numerous nations across the globe. Federalism in India rests upon features like strong centralizing tendency and cooperative federalism. The constitutional makers of India wanted a government that would keep in mind the national interest. We must keep the contemporary situation of the country in mind to determine why the constitution is federal in its unique sense. India follows a hybrid system of federalism, which ensures a strong union and autonomy of the state government. B.R. Ambedkar argues that the main criteria for being a federal nation is the distribution of powers- and, India has satisfied the same.

The British introduced federalism in India via the Government of India Act, 1935 and its provisions were later absorbed into the Constitution after undergoing a few changes. The federal nature of India includes two levels of the government, i.e., the Central and State, between which the executive and legislative powers are distributed. In theory, constitutional supremacy is not mentioned clearly, however, its application and understanding through empirical evidence, i.e., no one has ever questioned the constitutionality of the constitution, helps in demarcating the same.

The onset of the coronavirus has thrown the entire world off-track. No corner has been left untouched. The two waves of the pandemic in India have disclosed the inefficient healthcare system. An attack on the federal structure of the Indian Constitution, by the Centre, has also been brought to light.

The First Wave

There is no specific law in India which deals with a pandemic. The wrath of coronavirus reached India in January 2020 and the Central Government imposed, a complete lockdown in March 2020. The Seventh Schedule of the Constitution divides powers between the Union and the State. It also mentions the three lists:

1. Union List (List 1) - the exclusive domain of the Centre in matters related to this list.

2. State List (List 2) - the exclusive domain of the States in matters related to this list.

3. Concurrent List (List 3) - both units of the government can legislate over matters in this list, however, the Centre enjoys overriding powers.

Despite the clear demarcation of subjects contained in these lists, the Centre can undermine a state’s legislative authority. If there is any matter which is not included in the State and Concurrent lists, then the Parliament is granted residuary powers to formulate laws on that matter, as per Article 248. Additionally, the Centre has not been completely forbidden from legislating over matters in the state list. Article 249 provides that the Parliament may legislate over matters in the State list provided that the Rajya Sabha passes a motion declaring that it is in the national interest for Parliament to create legislation on any topic included in the State List, then the Parliament may do so.

Coming to the present matter, the Centre imposed a lockdown across the country through the Disaster Management Act, 2005 (DM Act), which in turn permitted the Centre to govern over matters in the state list, namely- hospitals, communication, markets, fair, and industries. Despite the severe criticisms, the Union did have the authority to use this Act since the subject matter of disaster, disaster management or pandemic is not present in any of these lists. Hence, they used their residuary power to pass the executive order. This, however, cannot limit the powers granted to state governments under the Constitution.

Section 11 (1) and Section 11 (2) of the DM Act states that a National Plan must be created, especially in conjunction with the States, when regulating a national disaster. However, the Centre completely overlooked and circumvented these provisions and implemented the act, without making a National Plan in consultation with the states.

As mentioned earlier, Article 249 permits the centre to legislate over matters falling under the state list. However, they may do so only if it is in the national interest and a resolution has been passed by the Rajya Sabha. The same requires two-thirds of the members to be present and voting. In this instance, no resolution was passed by the Rajya Sabha which would authorize the Centre to act in the manner they did.

The Central government has also relied on the Epidemic Diseases Act, 1897. According to Section 2 of this act, the state governments are empowered to enact temporary legislation to prevent epidemics from spreading. The Centre is provided with limited powers under this Act (Section 3) to regulate ships, ports, and vessels. Hence, it might be asserted that the imposition of legislation by the Centre cannot bind a state government, because Section 2 of the Epidemic Diseases Act, 1897, gives the state government a certain priority for dealing with epidemics.

The Second Wave

While the first wave saw a centralized unilateral lockdown and showed the cracks present in the federal structure of India, the second wave showed the strain in the Modi government’s motto of ‘cooperative federalism. As stated by Louise Tillin, “India has moved from unilateral centralized decision-making in the first wave to something that approximates unilateral decentralized decision-making by default in the second wave.”

The second wave of COVID-19 started affecting India around March-April 2021. A severe shortage of hospital beds, oxygen supply was seen across India. The principle of cooperative federalism requires the state and Centre to cooperate in an administrative and legislative sphere, in a harmonious way, to embolden national integration. However, during the second wave, the Centre partially disappeared to the point that the states in India had been thrown into a deep end.

Talking about the chaotic situation that arose in cases of vaccines, the Modi government ordered vaccines, that too a bit late keeping in mind to provide the nation with Covishield and Covaxin for better effectiveness to tackle the rising cases of the pandemic. As the second wave devastated India and the Centre was chastised for its vaccine gaffe, it did something extraordinary: it gave its authority to the state government to tackle the situation in a manner that suits them feasible. States tried to provide vaccines to the masses by purchasing them from the international market. To break the impasse between the central government and the states, the Supreme Court had to step in.

As India had a catastrophic oxygen shortage in April, which resulted in many fatalities in addition to Covid-19, the Centre came under growing fire from the media and the judiciary on this issue.

Even as it relinquished its role as pandemic planner and inter-state coordinator, the Centre continued on the attack in other areas, attempting to usurp state powers. The GST council was the most blatant example of this. The Union simply did not assemble it for the previous seven months, even though it is legally required to meet every quarter as the exception has to be made because of the pandemic. It put the spirit of cooperative federalism somewhat in jeopardy.

Analysis 

Even if the argument that the Centre can implement the DM Act is accepted in arguendo, the question of whether the Centre’s application of the legislation in an unconstitutional way arises. Reiterating, the Centre implemented Section 11 (1) & 11 (2) of the DM Act without formulating a national plan, and neither did it consult with the states before announcing the lockdown. This clearly shows that the Centre is not keeping in mind the spirit of federalism.

In this setting, there is a judicial vacuum, with no important precedent on the nature of pandemic measures or their impact on Centre-State relations. Cooperative federalism necessitates not just policy agreement and cooperative decision-making, but also a legitimate allocation of power that reflects a genuine desire to collaborate.

Whereas, on the other hand, the second wave left the states to deal with the pandemic on their own with certain help from the Centre. The spirit of cooperative federalism was somewhat absent. The states scrambled trying to get their hands on vaccines, oxygen cylinders, etc. The second wave threw India's federal system into disarray.

The absence of government leadership, which played a critical role in the first wave, was the single most important factor for the disaster that took place during the second wave. A shaky federal leadership resulted in turmoil as states fought amongst themselves and with the Centre over the provision of oxygen and medications, compelling the Supreme Court to intervene.

While one might expect the federal government to lead the states during a time of the national disaster, it instead criticized them, claiming that health is a state responsibility and those sub-national governments should not have been complacent in the face of the pandemic. Not only did the Centre indicate a reluctance to adopt dramatic actions like a national lockdown, but it was also slow to notify the states about the new variant's characteristics and to offer treatment and logistical procedures and recommendations. Instead, it left it up to the states to adopt localised steps to stem the spread— a move it only reluctantly permitted in the first wave.

CONCLUSION

India’s management of COVID-19 moved from a unilateral centralized lockdown in the first wave to a decentralized lockdown in the second wave. Both these lockdowns had one thing in common- they exposed the flaws and cracks in Indian federalism. While discussing the first wave, one may argue that combating coronavirus is of great importance and so it compels the Centre to act authoritatively, however, any reaction to such unique conditions must not infringe on the states’ constitutional rights.

The second wave saw the opposite end of the spectrum, a dramatic decentralization. This might’ve been beneficial had the states and the Centre worked in the spirit of cooperative federalism. The states were struggling in lieu of the lack of oxygen supply available. Lack of urgency early in the second wave, exacerbated by a lack of federal leadership and a breakdown of confidence and collaboration between the Centre and the states, all contributed to the pandemic’s severe mishandling and the state’s temporary virtual collapse.

The way forward for India is to make changes to the Disaster Management Act, 2005, and the Epidemic Diseases Act, 1897. Further on, shall the Centre legislate over matters in the states’ exclusive domain as according to Article 249, then the appropriate procedure for the same needs to be followed. The most fundamental lesson from India’s experience with COVID-19 is that managing a grave national crisis requires healthy cooperation between the Centre and states.

~Authored by Aishani Navalkar, a 2nd-year law student of Symbiosis Law School, Pune