THE UNDERMINED FEDERALISM AMIDST COVID-19- A LEGAL ANALYSIS

A country having federalism as its characteristic is expected to perform better in processing unforeseen events and mishaps than the countries without it. The pandemic, Covid-19 has put the federal structure of the country to the test. The Centre-State interplay has been a dominant feature in the fight against the novel Coronavirus. While India was the first-ever constituent body in the world to adopt ‘cooperative federalism’, the management of this crisis seems to undermine the democratic governance and its characteristics. From early 2020, when the pandemic was in its initial phase, to date, when the second wave is at its peak; center-state relations and the conflicts in cooperation between both the entities have been constant. This leads to revisiting the concept of cooperative federalism and the legal framework to understand what lacks in having synchronized administration during the global crisis. This paper aims to do a legal analysis of Covid-19 management and various center-state disputes that occurred recently. Firstly, it explains the legal framework and its interpretations used to confer the powers assumed by central and state governments. Secondly, it highlights various center-state conflicts like the issues of GST Compensation, arbitrary nature of the vaccination policy introduced, inadequate supply of oxygen and other necessary resources, etc. Moreover, it points out the limitations of the strategies used and their implementation by the government. Lastly, it concludes by summing up the contents of the paper.

The Constitution And The Legal Framework

In bizarre circumstances like the outbreak of covid-19, the Constitution gives the lead to the Union Government in coordinating between States and providing aid to them. According to the Constitution of India, 1950; the extent of inter-state migration and quarantine is allotted to the center as per entry 81 of the Union List of Schedule VII.[1] The ‘public order, ‘police’ and ‘public health’ are the fields under state as per entries 1,2, and 6 of the State List respectively.[2] Entries 23 and 29 of the Concurrent List provide for “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 the centre and states.[3]

Covid-19 was declared as a ‘national disaster’, and no such term as ‘disaster’ was available in all the three lists of the seventh schedule before 2005. The Disaster Management Act, 2005 (DMA) was enacted by the Centre gaining power from entry 23 of the Concurrent List.[4] Concurrent List is meant to strike a cooperative balance between centre and states for systematic regulation on common matters. It also obligates the Centre to provide for equal responsibilities and powers to the States. Section 3[5] of the DMA provides for the constitution of the National Disaster Management Authority (NDMA) with the Prime minister as ex officio chairperson. NDMA gets its power from Section 6[6] to make policies and guidelines for the management of the disaster. In case of emergency, the power of the chairperson extends to exercising any power of “National Authority” subjecting it to “ex post facto ratification by the National Authority.”[7] DMA includes similar provisions for State and District Disaster Management Authority with the chief minister and the collector or district magistrate or deputy commissioner as ex-officio chairperson respectively. Section 11 of the DMA gives for a national plan that has to be prepared to deal with the ‘disaster’ which happens after consultation with state governments and other experts of disaster management.[8] In the case of Covid, this provision was not paid heed to, and a successive national lockdown was imposed by the central government without consultation and the ‘national plan’.[9]

The other Act which was used by several states to deal with the pandemic is the Epidemic Diseases Act, 1897 (EDA).  It is a colonial-era law giving ample powers to the State governments to deal with the outbreak of epidemic diseases.[10] Section 2 of the Act gives power to the states to make special regulations according to the nature of the disease which includes inspection, segregation, and tests of the people infected by the disease. Several States like Odisha, Karnataka, and Maharashtra have used their power under EDA to give out Covid-19 regulations for the epidemic disease. It also empowers the Central Government to take precautionary steps concerning the epidemic disease at the entry and exit ports of the country.[11]

Both the acts show that the state governments have a key role in such disaster-like situations while the central governments have roles of policy-framing, communicating guidelines, and monitoring inter-state functions. However, the implementation has not been the same by the central government as it assumed sweeping powers under Section 6(2)(i) of DMA declaring national lockdown with binding guidelines to States. This led to various centre-state conflicts as discussed in the next section.

Centre-State Conflicts

There have been various centre-state conflicts during the management of the pandemic. Where Central Govt. brought its measures to manage the crisis, some states used very innovative and effective ways to deal with it. In the early phase of lockdown, when extended till May 2020, the central govt. allowed for some relaxations in non-containment zones. However, when Kerala allowed for the limited reopening of local transport and restaurants, it came under conflict with the Union Ministry of Home Affairs as it proposed it to be violative of the binding guidelines by the Central Government.[12] The Union Ministry identified some districts where the situation was ‘especially serious’ due to massive spread from West Bengal, Maharashtra, Delhi, and Madhya Pradesh. It suggested various mitigation measures for implementation by deploying specific teams. The state government of West Bengal objected to the interference by the Centre without clarity of the provisions under DMA, 2005 arguing the dilution of federalism due to such measures.[13] There have been some major centre-state conflicts in the pandemic which are substantially analyzed ahead to understand the dwindling federalism and its impact on common people.

A widespread conflict was about the GST compensation. The central government decided to not pay the GST compensation for revenue shortfall to States.[14] The states seek it due to the implementation of the Goods and Service Tax (GST). The central government resisted as the revenue shortfall was due to the pandemic covid-19, which is an “act of god”. Resultantly, instead of compensating, centre presented two alternatives to the state governments under which they have to borrow the money for themselves. GST is a single tax replacing multiple indirect taxes for removing control and power of centre and state to levy different and multiple taxes. Both tiers were to give up their exclusive powers of charging taxes as, centre of excise duty and, states of VAT, entry tax, etc. The introduction of GST was meant for cooperative working of centre and states. The GST Council was set up under Article 279A[15] of the Constitution with Union Finance Minister as head and other state finance ministers as members of the Council. All the decisions related to GST were to be taken collectively under this council. The voting pattern of the GST council has inequivalent weightage with centre having one-third weightage of the total votes cast in the council. This gives a veto power to the Centre over all the proposals put forth in the council, as even if all the state governments unanimously agree to some proposal, it can be denied by the central government due to the difference in weightage of the vote. The State governments, in the first place, were ready to give up their autonomy over taxes because they were assured of compensation by the Centre. This is provided in Section 18[16] of the Amendment Act for compensation upon loss of revenue till 5 years from the implementation of the GST. The money available in the GST Compensation Fund was not enough to fulfill the revenue shortfall of the States, as the centre was not able to collect adequate cess from the states due to the lockdown in the corona crisis. Upon this argument, the centre used Section 10(2)[17] of the compensation act which provides for compensation payable only from the GST compensation fund. It argues that there is no obligation of the centre to pay the compensation as per Section 10(2) as the amount is insufficient to cover the shortfall of the states. There lies an inherent contradiction in the centre’s argument as highlighted by Kannan, that where the centre argues about no obligation to pay the compensation using other sources of funding, it also acknowledges its duty to pay the same during revenue shortfall to the states, even in the shortage of funds.[18] Moreover, by using this contradictory argument, the centre appears to renege its primary obligation to compensate the states. The voting mechanism for GST Council also leaves no alternative solution for the States to put forth a proposal until the Centre stands firm. This situation of mercy left with the states is an example of undermining democracy and federalism where centralization of policies occurs, with no alternative left with the states.

A recent concern that grabbed headlines was the arbitrary nature of the Covid-19 vaccination policy introduced for the 18-45 age group of people during the second wave of coronavirus.[19] Before the introduction of this policy, only people above the age of      45 and frontline workers were getting vaccinated. The ‘liberalized and accelerated’ policy appears a progressed step at the first glance but the catch lies in the detailed terms and conditions of the policy. The center allowed the private vaccine manufacturers to not sell the whole stock to the central government but sell 50% in the open market and the rest 50% to the centre. With this, the centre left the states to bid for buying stocks of vaccines in an open market competing with private players. Private hospitals are allowed to process vaccination with self-set prices. With this policy, dual pricing of the vaccines is allowed, which increases pressure upon states as they are to procure vaccines from open market competing with other states and private players, that too when centre gets the same vaccine at the discounted rate and distributes it freely to the 45 above age group and frontline workers. As the matter of ‘public health’ lies in the concurrent list, both the centre and states have an equal obligation to protect the health of the people under the Constitution. The Supreme Court also asked questions to the centre in its suo-moto petition about the differential pricing for the centre and states.[20] This discriminatory policy for centres and states is unjustified and arbitrary. Moreover, there is no assured quota of vaccine stock mandatory for states. This creates a scope for increased prices of vaccines for the common people if private players buy them at higher prices. The health of the people and inter-state relations, both are compromised with this policy. This kind of arbitrary policy might lead to disparities in vaccine availability for different regions, ultimately hampering the goal of universal vaccination.[21] The fundamental right to equality (Article 21) is violated for the states. For a classification to be validly justified, a two-prongs test exists[22]– one, there should be intelligible differentia for distinguishing the group that is included and the one that is excluded. Second, there should be rational nexus between the classification and the objective it seeks to achieve. This differentiates centre from states in obligations and resources, which is contradictory to the aim of the concurrent list, which provides equal obligations to both centre and states. Hence, there is no intelligible differentia for discrimination. Furthermore, it is introduced to facilitate better access and to reduce operational stress of government by including private players.[23] The rational nexus also appears to be missing as the policy is creating dual pricing of vaccines and scope for inadequate supplies to the state government, creating an unjustified price variation for the people, that too in this pandemic era.

Not just the vaccines, but centre-state conflicts are also visible in the allocation of other important health care facilities for the treatment of patients. Delhi grabbed attention when it complained about the inadequate supply of medical oxygen as compared to other states for treating patients.[24] This also led to several casualties due to deficiency in the oxygen supply in the national capital. Many people died across the country due to deficiency in resources like non-availability of beds, necessary medications, medical oxygen, etc. Finally, interference by the Supreme court was done for scientific allocation of medical oxygen to states and union territories. This was done by constituting a 12-member national task force that will formulate a scientific methodology of allocation according to specialized domain knowledge to deal with this unprecedented human crisis.[25]

Common people faced the consequences because of non-cooperation between the centre and states. The Centre decided to take control of allocations and facilities without paying heed to the primary role of states in such a crisis for better administration. “Cooperative Federalism” was highly diminished, when it was most required to deal with the ‘disaster’.

Limitations Of The Framework And Its Implementations-

Disaster management is conventionally considered a matter of competence for states to cope with, rather than the centre. The awareness regarding disaster-prone areas and accessibility to respond in a crisis usually fall first in the hands of state authorities.[26] In the case of Covid-19, the ‘national’ legal framework for disaster management was invoked by declaring the crisis as a notified disaster. First, The NDMA does not have a progressive history in the management of disasters. Its lack of vigilance over state preparedness was called out by SC in the year 2017.[27] Also, during the withering disaster in Uttarakhand as torrential rains in 2013, the performance of government and administration as an immediate response to the calamity was not apt under this Act.[28] Secondly, active cooperation between the centre and the states, which is crucial for a progressive democracy, has gone astray doing the pandemic. The mandatory consultation with states and then preparing a ‘national plan’ before giving out national binding guidelines under DMA was absent. This discerning application of the act hampers the idea of ‘federalism’ which is the basic structure of the Constitution as per the landmark judgment Keshavananda Bharti v. State of Kerela[29].

‘PM CARES Fund’ created fiscal setbacks for the states. This is an example of diminished state value with centralized policy. This was introduced for the central collection of national and international funds during the crisis. Donations made under this were given a status of Corporate Social Responsibility and hence exemptions, but the same status was not provided to state relief funds (CMNRF). This plan directly disincentivizes any donation under CMNRF. GST collections and revenue streams were heavily affected in some states.

The sudden lockdown declared by the national government was also not a very effective implementation. As a result of this announcement, poor people and migrant workers suffered the most. They were left with no means to travel to their home grounds. Sudden declaration without any notice also left the poor people with no employment to earn and hence no food to eat, as most workers are daily-wage laborers. State’s role was heavily undermined, which if not done, could have led to some preparation for the poor and migrants on the ground level. The argument by the Centre for the sudden lockdown was the reason for the national emergency. But there were precedents of Kerala from January and the national lockdown was announced in late March. Both, the parliamentary deliberations and the state consultations were deliberately not done before the lockdown. Despite Kerala and Rajasthan dealing with Covid earlier than the centre and handling it quite well, centre did not consider it necessary to consult with states. Right to life and the right to free movement, both were impeded due to the sudden lockdown, leaving the poor to suffer. It was meant to be a coherent federal response with diverse and coordinated views of different states for best outcomes but just reduced to a centralized and undemocratic response.

Scope Of ‘National Importance’

The centre having extreme autonomy for taking all the decisions without states’ involvement needs revisiting. The constitutional framework and its interpretations used by the government in a state of emergency are essential to understand the operating system and its loopholes. The Union Government gets its power to issue binding orders to States from Article 256 of the Constitution.[30] There lies three preconditions to it- one, there must exist a central law applicable to state[31]; second, the directive from Union must be related to a matter under the competence of the central law[32]; third, the directive must be for states to comply with the central law. According to the Jay Engineering and Co. case, it is mandatory for the state governments to adhere to the binding directives issued by the centre, and not issue guidelines contradictory and disregarding to the Centre’s directive.[33] In case of non-compliance to such directives, Article 365[34] can be invoked by the Central Government which results in President’s rule in the particular state. The imposition of the President’s rule is conditional to the directive issued being lawful.[35] For determining lawfulness, whether it interferes with the competence of state law or not, has to be determined. Any interference by Union in the State domain is prohibited unless expressly provided in the Constitution.[36] But, the binding guidelines issued by the Centre for the lockdown were expressly encroaching the domain of State matter, as the restrictions pertained to ‘public order, ‘police’ and ‘sports and entertainment’ which are provided under the State list.[37] Justification for this encroachment is ‘National Importance’. In the case Jayant Verma v. UOI[38], Nariman expressly provides that a matter of ‘national importance’ justifies the implementation of parliamentary law upon a matter of state list. The scope of ‘national importance’ is quite wide for adjusting constitutional justification for central directives and hence assuming paramountcy. Despite the constitutional scheme of India not giving sovereignty to the Union, the scope of state laws is limited by sourced constitutional framework upon compliance of central laws.

Conclusion-

India created an indigenous federal structure by giving autonomy to states and gave birth to the idea of cooperative federalism. The conflicts during the pandemic presented a damaged trust between centre and states leading to hampering the federal structure, and hence the essence of the democratic governance. Limited interpretation of the Constitution to carry out a centralized system and strategies to tackle the epidemic presented a ‘sovereign approach’. The whole system lag highlighted the need of bringing in an equalitarian approach to handle such a crisis. The Centre must realize that the need of the hour is to treat states as equals, and strengthen their capabilities instead of increasing their dependency upon the centre.[39] In essence, cooperative federalism is the key to ensure an inclusive and adequate system, and hence the democracy.


[1] The Constitution of India, 1950.

[2] The Constitution of India, 1950.

[3] The Constitution of India, 1950.

[4] GoI (2020a): Order No 33-4/2020-NAM-I, Ministry of Home Affairs (Disaster Management Division), 14 March, https://www.ndmindia.nic.in/images/gallery/Items%20and%20Norms%20of%20as…(COVID-19).PDF.

[5] The Disaster Management Act, 2005.

[6] The Disaster Management Act, 2005.

[7] The Disaster Management Act, 2005.

[8] The Disaster Management Act, 2005.

[9] Pankhuri Aggarwal, “COVID-19 and Dwindling Indian Federalism” 55 EPW 26-27 (2020).

[10]Niharika Salar, https://law.nus.edu.sg/impact/covid-19-indias-institutional-response-the-centre-state-relationship/

[11] The Epidemic Diseases Act, 1897.

[12] Shemin Joy, “Kerala’s lockdown relaxations violation of guidelines: MHA” Deccanherald, Apr.20, 2020.

https://www.deccanherald.com/national/keralas-lockdown-relaxations-violation-of-guidelines-mha-827579.html

[13] Is the Centre interfering in the Covid fight or do states like West Bengal, Kerala need hand-holding? The Print, Apr 21, 2020. https://theprint.in/talk-point/is-centre-interfering-in-covid-fight-or-do-states-like-west-bengal-kerala-need-hand-holding/406005/

[14] ‘Centre betraying States by not paying GST compensation’ The Hindu, Aug 28,2020. https://www.thehindu.com/news/cities/Delhi/centre-betraying-states-by-not-paying-gst-compensation/article32460216.ece

[15] The Constitution of India, 1950.

[16]  GST (Compensation to States) Act, 2017.

[17] GST (Compensation to States) Act, 2017.

[18] Varun Kannan, “Coronavirus and the Constitution – XXXV: Examining the GST Compensation Crisis”, https://indconlawphil.wordpress.com/2020/09/08/coronavirus-and-the-constitution-xxxv-examining-the-gst-compensation-crisis-guest-post/

[19] Manu Sebastian, “Arbitrariness Of Centre’s COVID Vaccination Policy Which the Forces States To Compete In Open Market For Vaccines” Livelaw, Apr 22, 2021.  https://www.livelaw.in/columns/arbitrariness-of-centres-covid-vaccination-policy-forces-states-compete-open-market-vaccines-172920

[20] “Supreme Court to government: Why different prices of Covid-1 ..” The Times of India, Apr. 30, 2021.

http://timesofindia.indiatimes.com/articleshow/82323760.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

[21] Ibid.

[22] For a list of cases see MP Jain, Indian Constitutional Law (6th edn, Lexis Nexis 2010) 1233.

[23] Azman Usmani, “Centre Still Controls India’s ‘Liberalised’ Vaccine Policy” Bloombergquint, May 13, 2021.

https://www.bloombergquint.com/coronavirus-outbreak/centre-still-controls-indias-liberalised-vaccine-policy

[24]“Delhi HC directs strict compliance of Centre’s oxygen allocation order” Business standard, Apr 22, 2021.

https://www.business-standard.com/article/current-affairs/delhi-hc-directs-strict-compliance-of-centre-s-oxygen-allocation-order-121042200821_1.html

[25]Nupur Thapliyal, “Supreme Court Constitutes National Task Force To Formulate Methodology For Scientific Allocation Of Medical Oxygen To States, UTs” LiveLaw, 8 May 2021.

https://www.livelaw.in/top-stories/supreme-court-constitutes-national-task-force-for-formulating-methodology-for-scientific-allocation-of-oxygen-to-all-states-uts-173842

[26] Supra note 9.

[27] Gaurav Kumar Bansal vs Union Of India And Ors , C.A. 444/2013.

[28]http://www.indiaenvironmentportal.org.in/files/file/AG%20Office%20Disaster%20Report%20English%202015.pdf

[29] Keshavananda Bharti v. State of Kerela, AIR 1962 SC 933.

[30] The Constitution of India,1950.

[31] T.P. George And Ors. Etc. Etc vs State Of Kerala And Ors, 1992 SCR (2) 311.

[32] M/S Sharma Transport Rep.By Shri … vs Government Of A.P. & Ors, C.A. No. 4998/2000.

[33]Jay Engineering Works Ltd. And … vs State Of West Bengal And Ors., AIR 1968 Cal 407.

[34] The Constitution of India,1950.

[35] Anubhav Khamroi, “Federalism and Covid-19: Analysing the “National Importance” Justification of the Centre” Law School Policy Review & Kautilya Society, 8 Aug 2020. https://lawschoolpolicyreview.com/2020/08/08/federalism-and-covid-19-analysing-the-national-importance-justification-of-the-centre/

[36] Supra note 21.

[37] Ibid.

[38] Jayant Verma. vs Union Of India, C.A. 134/2013.

[39]https://www.civilsdaily.com/news/cooperative-federalism-in-the-time-of-covid-19/.

Author: Bhavana Jawa from WBNUJS, Kolkata.

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