COVID rocks India’s federal structure amid calls for reform

On June 2, 2021, Odisha Chief Minister Navin Patnaik wrote a letter to all chief ministers urging them to “unite and form a consensus that the Centre should procure COVID vaccines and distribute them free to the states.”

With this rallying call, Navin Patnaik waded into the controversy over who should foot the bill for India’s ambitious COVID vaccination program — the Centre or states. Patnaik clearly stood by the state governments. The move was unexpected as the Odisha CM has been seen as a ‘neutral’ party in the often contentious relations between Prime Minister Narendra Modi and many non-BJP governments in states around India.

Patnaik’s letter was immediately welcomed by West Bengal CM Mamata Banerjee and Tamil Nadu CM MK Stalin, spurring talks of the emergence of a federal front against the ruling BJP, in the run up to the 2024 Lok Sabha polls.

While squabbles between states and the Centre are not new in the Indian context, over the last year and half, disputes over the handling of COVID pandemic have seen a sharp rise in tensions. Many non-BJP state governments have accused the Narendra Modi regime of imposing unilateral policy decisions and usurping constitutionally guaranteed powers of the states.

“Attacks on federal rights have become the hallmark of the Modi government and we see the same in the context of the pandemic too. A total of 35 Bills were passed last year and most of them—including the National Medical Commission Act—are violative of federal rights,” Tiruchi Siva, the DMK’s articulate Rajya Sabha member told Covid Response Watch.

According to Siva, the Centre’s strategy has been to come up with an ordinance first and then secretly lobby with their allies and other non-aligned parties to pass them in the Rajya Sabha, where the NDA doesn’t have a clear majority. “All this was happening without prior consultation with all the parties and state governments,” alleged Siva.

“The Centre mishandled the pandemic very badly. They imposed a total lockdown, instead of a targeted one, indiscriminately on all states on a very short notice and without giving them any advanced warning. Naturally, they paid a heavy price for it. The economy has totally collapsed and slipped deep into the red,” the Rajya Sabha MP said.

The Modi government’s policy on COVID vaccine procurement and distribution has been a particularly sticky issue with many state governments. According to Siva, the DMK had demanded that all the required vaccines be supplied free of cost to the states. This suggestion was rejected and states were initially told they would have to buy 50% from the market.

However, even the 50% the Centre had agreed to supply free was not supplied on time, delaying the vaccination drive in many parts of the country. Following opposition from many states and a public outrage, PM Modi made a climbdown on June 7 and announced that vaccines would be given for free.

“There was an inordinate delay. Timely and speedy vaccination could have prevented numerous deaths,” added Siva.

The state governments have also been upset over the Centre’s reluctance to remove GST on vaccines, COVID-19 medicines, PPEs and other related inputs. They further accuse New Delhi of not devolving funds required as part of the COVID response to the States. The Centre’s failure to anticipate oxygen requirement as part of the second wave of COVID has also been a sore point.

Purnendo Bose, the Minister of Agriculture in Mamata Banerjee’s TMC Government in West Bengal, who is vocal on federal rights, told Covid Response Watch: “According to the Constitution, India is a Union of States. But the present arrangement in reality has made States totally dependent on the Centre, especially in matters of finance. From PM to DM (District Magistrate) there is a highly centralized power hierarchy from top to bottom, which dictates to the States. This is not cooperative federalism but a one-way traffic under a unitary state arrangement. We are in touch with other regional parties to fight for federal rights.”

According to him besides fighting individual assaults on federal rights, they would also come up with a programmatic plank for federal restructuring in India and federal reforms.

“Federalization and more powers and autonomy to the States are very fundamental for the very existence of a united multi-national and multi-ethnic India,” he says.

The Modi government’s spokesmen and supporters have justified the PM’s actions saying he acted in good faith to save lives during the pandemic. However, what is the constitutional basis for the Modi government to invoke the right to life to override federal rights?

Answering this question, Professor Babu Mathew, from the National Law School University of India, Bengaluru, and an expert on constitutional law, points out that fundamental rights are not the monopoly of the Centre, nor does it have any overriding powers in this regard.

“The Constitutional arrangement is not to make such a distinction between different state structures when it comes to fundamental rights. States too can invoke the same right to life as well. Or, for that matter, if contaminated water from some private industry threatens the health of people in a locality, even a municipality can invoke the right to life and act upon that,” he says.

Now that the Centre is invoking the right to life to arrogate all powers to itself in pandemic management, is it also bound by certain constitutionally defined duties, say, for timely supply of vaccines to the States? Answering this, Babu Mathew said, “It depends on how we interpret the issue of different Lists under the Constitution. Health/healthcare comes under the State list, but the Centre usually makes use of some other sub-element, even where it falls under the State list, to usurp more powers to itself.”

Mathew cited the example of disaster management, which is not clearly mentioned under any list and is a grey area in the Constitution. But the legal basis of the Disaster Management Act is entry 23 in the Concurrent List, viz. “Social Security and Social Insurance”. So the Centre invokes its powers under the Disaster Management Act to declare an arbitrary total lockdown.

Also read: IIT Kanpur team lists out three possible COVID 3.0 scenarios

Interestingly in the recent months, given the ongoing battle between the Centre and the States on power sharing, the Indian judiciary has stepped in as the final arbiter. For example, the Supreme Court has taken suo moto cognizance of the Modi government’s poor handling of COVID-19 and openly criticized it many times and gave directions, including on the vaccine issue. After a long period, the higher judiciary is seen as asserting its independence vis a vis the Modi regime.

It is clear that, whether there is a federal front politically or a maha-gathbandhan with a strong federal agenda soon or not, the issues of federal restructuring and federal reforms—including federal judicial reforms—are squarely on the agenda in the days ahead.

B. Sivaraman is an independent researcher based in Allahabad (Prayagraj). He can be reached at sivaramanlb@yahoo.com

Courtesy: Covid Response Watch