Guest Post: Federalism Hung by a Thread in India during the times of COVID-19 Pandemic

Federalism in India during the times of COVID-19

The entirety of our world is facing an air of uncertainty, confusion, and conflict due to the pandemic. For a country like India, which has several states and union territories, a population of nearly 1.3 billion people, and a spectrum of diversity, the principle which protects the sanity of this hierarchy is federalism. India has been a host to several types of federalisms that have surfaced in different times since independence. However, lately this particular idea of federalism has been slightly dented due to conflicts between the centre and different states especially in the times of COVID-19 pandemic.

In the beginning of the pandemic, the Central Government took certain actions that didn’t go down well with certain states and they suffered because of that. Not only such actions robbed the states of their decisional autonomy and gave overarching powers to the Centre but also shook the conscience of Federalism. This article will give an overview of those instances when the Central Government took the centre-stage during the pandemic and subsumed decision making powers of states which in turn led to the deterioration of federalism. 

What is Federalism?

Federalism refers to the form of government in which powers are not centralized rather distributed between the center and the states. In the case of SR Bommai v. Union of India it was the opinion of Justice AM. Ahmadi that the very essence of a federal state is the division of power between Union and States. Although the word federalism explicitly finds no mention in the text of Article 1(1) still, it is implicitly considered a basic feature of the Indian constitution. In the case of Kesavananda Bharati v. State of Kerala the apex court placed federalism under the umbrella of the basic structure of the Indian constitution. KC Wheare called India a quasi-federal system owing to its features of bicameral legislature, written and rigid constitution, division of power between center and states. Further, as per the judgment in State of West Bengal v. Union of India Supreme Court held that decentralization was mainly to facilitate Governance and thus the concept of federalism in India has traits of centralization too. The constitution of India divides the power between the center and the states under schedule VII of Part XI into three lists i.e. Union list, State list and Concurrent List. Although, powers are appropriately demarcated, still there is looming confusion on the question of certain subjects given in the 3 lists. This perplexity eventually leads to conflict between Union and states from time to time.

The Centre Transformation into ‘Almighty Centre’: An Attack on Federalism during COVID-19

Because there was no condition-specific legislation for an outbreak like Coronavirus, the Central Government resorted to the following acts to gather authoritative powers to respond to the situation:-

[A.] A century-old Act i.e. Epidemic Disease Act, 1897, was enabled, this directed state governments to invoke Section-2, which empowers them to take measures for containing the spread of dangerous epidemic diseases. Also section 2(A) of the Act requires the Central Government to ensure inspection of vessels or ships so that spread of the disease can be reduced. The act also provides for the penal provision so that the offender gets punished under Section 188 of Indian Penal Code. The Centre also brought Epidemic Disease Ordinance 2020 to amend the Act with the insertion of definition clause under section 3 that includes the definition of Health Care personnel, the act of violence, etc. so that the problems faced by the healthcare workers such as violence and non-cooperation can be curbed, which will be cognizable and non-bailable under section 7 of the Act. Further, section 2A was also amended and section 4 was added which requires the Central Government to take measures as “may be necessary” to deal with the situation.

[B.] National Disaster Management Act, 2005 was also employed to tackle the situation posed by Covid 19 which requires the Central Government to establish the National Disaster Management Authority to deal with the disaster by laying down the policies, plans, and guidelines to respond to the disaster promptly. Though the act has no explicit entry in the seventh schedule yet parliament enforced this act under entry 23 of the concurrent list i.e. Social security and Social Insurance, employment, and unemployment. However, not all aspects of this act are covered under the concurrent list and due to this Union has encroached upon the subject matter of state list.

Employing these acts during the time of pandemic gives room for allegations as to how Centre has over-stepped upon the powers provided to states and how the states have been sidelined. Union by using the above-stated legislation has acquired a good amount of control over the fields that were once matters of state list.  

Broken Horizontal, Vertical and Fiscal Federalism in India during the times of COVID-19

The concept of federalism not only exists between the centre and the states but also among the states, formerly known as vertical and latter is called horizontal federalism. But the curtains of federalism were down since the nationwide lockdown was implemented by the Central Government. There were multiple incidents of a tussle between the centre and states along with conflicts among the states too.

For states, funds are the most important safety net that they need in a crisis and excise duty and oil sales are the biggest sources of the state income. Last year, when the Central Government implemented a ban on sale of liquor, several states expressed concerns. According to the reports, when states started running out of the funds they intimated this to Centre for example; Punjab requested the centre to allow them to sell liquor, Karnataka told the Centre about their empty treasury reserves and requested to lift the ban. Such instances of crisis calls for prompt and adequate actions and since states are the concerned stakeholders, they should have a say in it as well apart from Centre.

Furthermore, the nation also witnessed the incidents when horizontal federalism (during this COVID-19 pandemic) also trembled and inter-state relations fell out between the states such as when Kerala and Karnataka collided politically and legally on the stoppage of movement between the two states. Same happened between Uttar Pradesh and Rajasthan, when Uttar Pradesh got the permission to transport students from Kota back to their states, making it an exception which wasn’t provided to other states.

Even Fiscal federalism has been questioned in the time of the COVID-19 pandemic. The Centre released a fund worth around Rupees 11,092 Cr. for fighting Covid, questions were raised on the allocations made to states like Kerala that only received approximately Rupees 157 Crore even when it had the second-highest number of cases in the country and states like Gujarat which had lesser cases as compared to Kerala at that time, got Rupees 600 crore out of the total. The opposition challenged the legality and transparency of the PM Cares Fund. Keeping in mind all of the above-stated facts, it is very clear how the entire concept of federalism was in shambles during the times of the pandemic.

Conclusion

Every state in India is different, in terms of population, education, health infrastructure, culture, and economy. At times, the most appropriate authority to properly deal with region-specific issues would be the State Government or the Local Authorities. It is very important to have a strong, united centre at this juncture, it is equally necessary to have a well-equipped State. It would not just be unfair but also chaotic for the union to go ahead and encroach on the fields that were originally designed for the states to handle. It would also be disastrous if the states go ahead and neglect the recommendations given by the centre. Therefore, a harmony struck between the centre and states through the tool of cooperative federalism is extremely critical to fight the monstrosity of COVID-19. A united India will not fetter against the likes of a virus, given that our political structure has the willingness to collaborate during these testing times.

Read more on Indian Federal Structure here on this blog.

This is guest post by Akshit Mishra and Damini Chouhan. The authors are final year students at  Institute of Law, Nirma University.

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