THE COVID-19: A CHALLENGE TO INDIAN FEDERALISM
Updated: Nov 3, 2021
Author: Hebah Mary Innah, II Year of B.A.,LL.B(Hons.) From Symbiosis Law School Pune.
The COVID-19 outbreak was declared to be a pandemic by the World Health Organization and resulted in a global health crisis that has shaken up governments across the world. The COVID-19 pandemic has exposed the strengths and weaknesses of all types of political systems and institutions during the last year and a half: democratic and authoritarian; unitary and federal; and every model in between. As part of their Covid-19 response, many governments have activated emergency legal frameworks to disable some routine procedures and set aside standard political and legal accountability mechanisms.
India has always had an unusual federal government where although the Centre and State have sufficient power, the Centre always has more power, thus resulting in a ‘centralized federalism’. However, the COVID-19 pandemic has damaged this constitutional premise. Faced with the worst disaster in independent India's history, the Centre has retreated to the brink of extinction which had resulted in India's states being plunged into the deep end.
To understand the dent COVID-19 has made on Indian Federalism, we must first understand the basis of Federalism in India and the unique form of government the country possesses.
FEDERALISM IN INDIA
Federalism in its truest sense is a system of government in which two levels of government control the same territory, and both the national government and the smaller political subdivisions have the power to make laws, and both have a certain level of autonomy from each other. In a federal form of government, governments at both the national and the state level function in their respective jurisdictions with considerable independence from one another.
The Indian model of Federalism is particularly unique in nature as it is said to possess the characteristics of “centralized federalism”. Here, a country like India, which is geographically vast and culturally diverse, gives autonomy to its provinces for administrative convenience and for representing regional interests. Compared to countries such as the United States, India possesses a highly centralized arrangement where the Centre possess considerable power over the day-to-day workings of the state government.
Article I of the Constitution refers to India as a "Union of States," implying that it was not formed through an agreement among the states and that the states have no freedom to secede or break from the Union. Furthermore, the Union and State Constitutions form a single framework from which neither may escape and within which both must function. The federation is a union since it is indestructible and contributes to the country's unity.
The equality of units in a federation is best ensured by their equal representation in the federal legislature's Upper House, i.e. Parliament. However, this is not applicable in the case of Indian States as there is unequal representation in the Rajya Sabha.
It should also be mentioned that when there are disturbances in any state, the Union Government has the authority to deploy Central Force to the State or to the affected area. Furthermore, by law, the Parliament may increase or decrease the area of any State, as well as change its name and boundaries. Additionally, they have the authority to impose “presidential rule” on any state, suspending or dissolving cabinet administration and replacing it with direct rule.
The federal principle envisions a dual system of courts. However, in India, the judiciary is unified, with the Supreme Court at the apex. The Constitution of India establishes a strong Centre by assigning all-important subjects to the Centre as per the Union List. The State Govern
When it comes to matters of health and a nationwide pandemic, the Seventh Schedule of the Constitution, which divides powers between the Union and the States, gives states precedence over the Centre on matters of health. Entries 81 and 82 of the Union List give the Centre legislative authority over “interstate migration; inter-state quarantine”; meanwhile, Entries 1, 2 and 6 of the State List give the State’s legislative authority over “public order,” “police,” and, most importantly, “public health and sanitation; hospitals and dispensaries”; and Entries 23 and 29 of the Concurrent List allocate the areas of “social security and social insurance; employment and unemployment” and “prevention of the extension from one state to another of infectious or contagious diseases or pests affecting men, animals or plants” to both the Centre and States.
COVID-19: FIRST WAVE AND SECOND WAVE
The COVID-19 outbreak was declared to be a pandemic by the World Health Organization on the 11th of March 2020. This resulted in a global health crisis that demanded a quick, decisive and effective response by governments across the world to protect lives and reduce the spread of the virus and prevent public health systems from becoming overwhelmed due to the crisis. In India, the spread of the disease became vigorous by March 2020, which led the Centre and State to invoke two available legal instruments to deal with the crisis.
Firstly, the pandemic was declared a "notified disaster" by the Centre, which used the Disaster Management (DM) Act, 2005, in particular to enforce a nationwide lockdown on March 24, 2020. As the pandemic situation worsened, the Centre used its residuary powers to invoke the statute and give numerous orders to the states, despite the fact that the word "disaster" does not appear in the Seventh Schedule. Furthermore, the Centre used other portions of the DM Act to offer mandatory guidelines and instructions to the states on topics such as lockdown length, limits, and containment zoning. The states, for their part, relied on the Epidemic Diseases Act of, 1897 which gave them the authority to deal with epidemic-like situations. Many state governments have used this statute to issue State Epidemic Diseases COVID-19 2020 regulations for their areas, including restrictions on movement and closure of commercial establishments, offices, and other public places. Furthermore, the Centre's general decisions and harsh procedures surrounding lockdowns and containment zoning hampered the states' ability to battle the virus's spread. For example, states were not permitted to purchase medical kits on their own without the consent of the Centre. This had an influence on the states' ability to mobilize and augment vital resources. The states demanded more autonomy
While the first-wave response was mixed, India's federal response faltered severely during the second wave. Due to a lack of urgency at the start of the second wave, along with lacking federal leadership and a breakdown of confidence and collaboration between the Centre and states, the epidemic was grossly mismanaged, resulting in a brief virtual collapse of the State.
On April 20, the prime minister addressed the public and pleaded for Covid-appropriate behaviour, as well as asking authorities to ramp up responses immediately. However, by that time, the illnesses had rapidly spread across the country. This resulted in a jumble of states. This became clear when a number of state governments openly fought over crucial medicines and oxygen cylinders, with some restricting deliveries to others. The breakdown in inter-state coordination got so severe that the Supreme Court was forced to intervene to break the impasse between the contending states.
THE VACCINATION BATTLE
Now coming to the case of vaccination in India, which was a vital difference from the first wave of the pandemic as in the second wave of the pandemic, a vaccine for the virus was introduced. The Union government, like all federal governments, has better resources and technological know-how for approaching overseas vaccine producers, conducting trials, granting permissions, offering logistical and financial incentives to the manufacturers, and, finally, acquiring the vaccinations. However, this caused a tussle between the Centre and the state government. Firstly, the Centre ordered too few vaccines. As the second wave took over the country, the Centre gave up on the issue of vaccines. On the 19th of April, the Union government announced that it would not involve itself in vaccinating Indians below the age of 45. States had now resorted to purchasing the vaccines themselves from the international market, which in itself was a difficult task, and India was the only country to have done this. This has resulted in the vaccination drive slowing down significantly.
Furthermore, states were unable to obtain vaccines through global tenders; for instance, Moderna stated that that they only deal with the Union government; hence they turned down Punjab’s request. This not only wasted time during the shortage and created in-fighting among States, with no positive outcome whatsoever. It should also be noted that the Centre’s vaccine pricing was discriminatory as the Centre had to pay only the base price while the States had to shell out higher procurement prices.
ISSUES THAT AROSE BETWEEN THE STATE AND CENTRE
The Centre's decision to expand the vaccination program to include those above the age of 18, for whom states had to acquire vaccinations on their own, as well as the relaxation of pricing and procurement restrictions on vaccine makers, had thrown a further wrench in the works. It was unclear, for example, how manufacturers should prioritize delivery — Centre (the lowest price), states (higher price), private sector (even higher price), or exports (highest realization). It was also unclear how supplies would be distributed among the states, which are all paying the same price. As previously mentioned, numerous states that followed ahead with vaccine procurement tenders found no interested bidders. This, combined with deferential vaccination price, created chaos and became a contentious feature of India's federal structure, with the Centre and states blaming each other for the confusion.
While one might expect the federal government to lead the states during a time of national disaster, it instead criticized them, claiming that health is a state responsibility and that sub-national governments should not have been complacent in the face of the pandemic. Not only did the Centre demonstrate reluctance to adopt drastic steps like a national lockdown (when the situation was more serious than the first wave), but it was also slow to notify the states about the new variant's nature and to offer treatment and logistics protocols and guidelines. Instead, it left it up to the states to adopt localized actions to stop the spread—a step it only reluctantly approved in the first wave.
COVID-19 has revealed the critical role of federal bridging institutions, as other advanced federal countries have demonstrated. In many aspects, the pandemic has exposed the deficiencies of existing constitutional and legislative frameworks for dealing with a pandemic or a pan-India health emergency. In the event of a pandemic, there are concerns about the ambiguity of both the Disaster Management Act of 2005 and the Epidemic Diseases Act of 1897.
The second wave has exposed gaping crevices in governance capacity and public health infrastructure, as well as exposing some constitutional authorities' questionable practices.
With dozens of people reportedly dying due to a shortage of oxygen in Delhi, the courts witnessed heated exchanges between the Centre and the State. While Delhi accused the Centre of depriving the State of oxygen, the Centre accused the State of exaggerating its oxygen consumption and abusing supplies, as well as failing to build the necessary infrastructure to address the situation. Meanwhile, certain states have accused others of “hijacking” oxygen supplies intended for them, even as the Supreme Court has ordered the Centre to develop a plan for equal oxygen distribution across the country.
States have also been asking for additional financial support from the Centre as their own revenues have collapsed. Some of the requests made by the chief ministers included: a request that donations to the to the state based on chief minister’s relief funds should be counted as corporate social expenditure; greater accessibility of testing kits and personal protective equipment for health workers; relaxations in fiscal deficit norms in relation to the payment of compensation under the Goods and Services Tax regime; a larger economic package for different sectors; and fiscal sustenance for states.
ANALYSIS OF THE ROLE OF THE STATES DURING COVID-19
Public health, as a subject, falls under the State List of the Indian Constitution. And by utilizing its full potential, several states have shot to the Centre of attention along with the escalating medical emergency. Many states have responded in a timely and organized manner.
For instance, Kerala announced an economic package of Rs. 20,000 crore and was the first State to have done the same. A week after that the Centre announced the Rs 1.7 lakh crore financial package. Health measures, loan assistance, free food grains, advance payment of welfare pensions, increased allocation for MGNREGS, subsidized meals, tax relief, and other measures were included in the relief package. When it comes to migrant workers or as said by Pinarayi Vijiyan, the Chief Minister of Kerala, “guest labourers”, apart from offering dignity, the state government set up 4603 camps for the wellbeing of the labourers who were stranded in the State. Another 35 camps have been established to house 1,545 homeless and poor persons. In addition to food and lodging, the camps include preventive measures such as sanitizers, soaps, and masks. To make additional space, educational institutions are likely to be converted into such camps. The State has also set up a helpline that provides mental health support to families of individuals exhibiting symptoms of COVID-19.
During the peak of India's outbreak in April and May, Kerala's case fatality ratio, which measures how many individuals die after contracting COVID-19, was 0.5 percent, which was lower than the national average of 1.3 percent. Kerala's concept of widespread mask use, social distancing, testing, and contact tracing appeared to be succeeding. Kerala has surpassed the national target, with 63 percent of adults receiving at least one dose of the vaccine and 38 percent of persons fully immunized.
Moving on to Delhi, the state government began offering free food to roughly four lakh persons from the poorest socioeconomic groups. Delhi Chief Minister Arvind Kejriwal promised some financial help for Delhi citizens. Rs 5,000 each had been transferred to eight lakh beneficiaries under schemes covering widows, the disabled, and the elderly. A similar announcement was made on Wednesday for more than 45,000 construction workers registered with the Delhi Labour Welfare Board.
In Maharashtra, according to officials in the chief minister's office, the administration is in contact with the Southern Command headquarters in Pune to seek cooperation for free movement of necessary products and enhanced medical infrastructure.
Maharashtra has a substantial farming population, and all farming-related activities, such as the delivery of seeds and fertilizer have been spared from the 21-day lockdown.
In Assam, which is a state affected by COVID-19 at a later stage, was always alert and had precautionary measures in place even before being affected by COVID-19. In the Guwahati Medical College hospital, a 30-bed Intensive Care Unit was ready in a matter of days. In the state capital, the hospital has been kept exclusively for coronavirus patients. In addition, a massive quarantine Centre is being developed in Guwahati's Sarusajai athletic stadium. It will be able to hold up to 700 people.
CONCLUSION AND RECOMMENDATIONS
India’s response to the COVID-19 pandemic has shifted the balance of its federal structure. On a positive note, while the states were the first to act, the Centre took the lead in terms of policy direction, coordinating the delivery of key resources and providing technical assistance. Thus, despite a slew of blanket measures and centralized decisions from the Centre, COVID-19 has been managed in a cooperative federalist manner. The pandemic offers an opportunity to revisit the recent debate around the federal organization of powers under the Constitution’s Seventh Schedule. It has been argued that such organization of powers is not cast in stone and the arrangement requires a review. As previously discussed, the vaccination pricing was arbitrary and driven by profit. The government should have bargained with Indian manufacturers for a larger supply at lower pricing. The most important takeaway from India's experience with the second wave of the COVID-19 pandemic is that dealing with a major national disaster necessitates robust collaboration between the Centre and the states. The federal government must be ready to serve as the anchor.