Why The Pandemic Tests Our Federal Credentials?

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by Basit Amin Makhdoomi

The advent of Covid-19 has not only put to test the health apparatus of our country but has also inflicted a gruelling examination on our economy, polity and social well being as a nation. The two and a half month-long national lockdown has exposed fault lines in a system under stress from competing for alternate visions of what India should be. It has also brought to fore the strain that the federal setup has had to bear in handling this life-threatening pandemic.

Narendra Modi

Federalism has always been considered to be an essential principle of our constitution. Our Supreme Court has in a catena of decisions, including the landmark case of Kesavananda Bharati v. State of Kerala held it to be part of the sacred “basic structure” of our constitution which in turn makes it imperative to be followed in letter and spirit for coordinated functioning of centre and states.

However, 2020 and Covid19 have brought along challenges that have exposed a tussle possibly sharpened between the BJP’s push for a unitary structure at the Centre and the demand from regional parties for greater autonomy to the states to strengthen the spirit of federalism envisaged in the Constitution.

Deviations from Federal Principles

In our fight against this pandemic, the strategy adopted from the day one has been top-down centric in nature with instructions being passed from the centre under the Disaster Management Act 2005 and the states have had a minimal or extraneous role. The states were directed or mandated only to increase the restrictions but powers for making dilutions wherever necessary were easily trampled upon by the centre.

From the very first lockdown announced by the Prime Minister, there is not ample evidence to suggest how far the states were drawn into consultation before announcing this first of its kind lockdown across the length and breadth of our country. The first straw of bad blood between the centre and the states came when Kerala tried to announce its own set of relaxations in Covid-19-free zones, hoping to sow the first seeds of economic revival. This was done keeping in view its best performance in terms of Covid-19 response and its achievement with almost near perfect recovery rate. This didn’t go down well with the centre and the Union home ministry reaction was immediate and sharp, forcing a chief minister Pinarayi Vijayan to beat a hasty retreat.

Prime Minister Narendra Modi addressing Chief Ministers on a video link. The subject matter was the containment of the pandemic.

A similar situation was noticed during a consistent conflict of opinion between the Centre and West Bengal government in their respective strategies of tackling this virulent disease. This disagreement on managing things between the two has negatively impacted the effort of halting this disease effectively thereby leading to colossal loss of lives.  Another instance of conflict arose when Centre without proper consultation with the states banned alcohol sales during the country’s national lockdown to contain the virus thereby blocking a crucial source of direct tax income for states struggling to bolster their health infrastructure and provide food to millions left jobless. The loss of liquor tax revenues – an estimated 7 billion rupees (US $92 million) a day prompted states like Punjab and Maharashtra to revoke the ban on liquor in order to meet its emergent needs.

Several states have also criticised the centre for its plans to centralize the purchase of Coronavirus medical and protective kits, as well as a special virus relief fund PMCARES that falls outside the remit of the federal auditor. Unilaterally zoning of the districts into red, orange and green during Lockdown 1 and 2 by the centre also didn’t logic out for states and they were aggrieved of not being taken into the loop on this. The issue of transportation of migrant workers also generated tussle with regards to the varied opinions on the modes and means of such transport. This all has enormously lead to even more bitterness between the centre and states which had been already flared up with the passage of citizenship Amendment Act and there divergent opinions on it.

Federal Scheme and Disaster Management

The seventh schedule of the constitution has clearly demarked the areas for which the centre and state have an exclusive domain to legislate, and then there are certain areas which have been placed in the concurrent list thereby empowering both centre and states to legislate upon. Areas which do not find a mention in any of the three aforementioned areas are considered to be residuary in nature and constitution bestows this residuary power upon the centre.

Even though this specific demarcation of subjects has led to an almost crystal clarity for legislating power centres but certain grey areas have always had a tendency to pit one legislative centre against the other thereby breeding bitterness and confusion. The term “Disaster Management” as a field of legislation does not find its place in any of the three lists and therefore bare reading of Article 248 read with Entry 97 of List I makes it residuary in nature, conferring mastery of centre over it.

The centre is therefore of the considerate view that since Disaster Management includes a pandemic, they are exclusive masters of devising rules and guidelines on it and states don’t have much discretion in questioning their strategies.

A different view of the same subject indicates that since subjects of “Public health & sanitation” are prescribed under the Entry 6 of List II makes management and legislation on this issue and exclusive domain of the respective states. The states feel Covid-19 is a public health emergency and this entitles states their autonomy to legislate and strategise according to their respective needs. These two views/interpretations of this pandemic have many a time brought centre and states at loggerheads with each other with common masses bearing the brunt.

Practising Cooperative Federalism

The federal scheme of things laid down by the constitution leaves no doubt that although the union has more powers in certain areas that does not entitle them to demean the existence of states in our polity. It needs to be appreciated that it is this autonomy of powers conferred upon the states which differentiate them from the centrally administered territories which are relegated to the status of a pawn in this federal set up enjoying no autonomy in their functioning.

Modi Cabinet 2.0

A perusal of Entry 29 of List III reveals that the centre and states have a concurrent jurisdiction to legislate on matters of the inter-state spread of contagious diseases, thereby clearly spelling the technicalities to be adopted leaving no room for conflicts. A provision like these had been envisioned to keep a tab on the difference of opinions that might arise in testing times like these.

Similarly preamble to the Epidemic Diseases Act 1897 prescribes its objective is to provide for better prevention of the spread of dangerous epidemic diseases. The Epidemic Diseases Act equally empowers the state governments and the central government to take measures as may be warranted or necessary to control the further spread of disease.  Thus, any state government, when satisfied that any part of its territory is threatened with an outbreak of a dangerous disease, may adopt or authorize all measures, including quarantine, to prevent the outbreak of the disease.

Similarly, the central government, when satisfied that there is an imminent threat of an outbreak of epidemic disease and that the provisions of the law at that time are insufficient to prevent such an outbreak, may take measures and prescribe regulations allowing for the inspection of any ship or vessel leaving or arriving at any port and for the detention of any person arriving or intending to sail. This all leaves no legroom for showcasing domination by the centre or the states.

It needs to be acknowledged that in changing times the traditional federal conundrum of choosing between a dominant centre or enhanced state autonomy has undergone a shift with the emergence of the doctrine of “cooperative federalism”. This doctrine requires the union and the states to work in harmony towards achieving larger goals of good governance and overall development. The Supreme Court recently in the case of Government of NCT of Delhi v. Union of India has unequivocally held that the union and the states need to embrace a collaborative/cooperative federal architecture for achieving coordination. In collaborative federalism, the union and the state governments should express their readiness to achieve a common objective and work together to achieve it. Both the Centre and the states must work within their spheres and not think of any encroachment.

Basit Amin Makhdoomi

The federal system of governance was adopted by the forefathers of this nation to unite separate states into a Union without sacrificing their own fundamental political integrity. Separate states, therefore, united with an expectation to share equally in the formulation of the basic policies applicable to all and participate in the execution of decisions made in pursuance of such basic policies. The approach of the Centre and the States on tackling certain issues may be different at times but this should not distract them from their ultimate goal and objective. This constitutional objective as enshrined in the Constitution should be the guiding star to them to move on the path of harmonious co­existence and interdependence. Treading this path of collaborative federalism will in a long way help us sustain the strength of constitutional functionalism in our welfare state.

(Author is a lawyer at the Jammu and Kashmir High Court. He tweets @BasitMakhdoomi. The opinions expressed in this article are those of the author’s and do not purport to reflect the opinions or views of Kashmir Life.)

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