The world at present is going through one of the worst medical crisis in the history of mankind. More than 200 countries have been affected due to the outbreak of the contagious Covid-19 virus. India is not excluded from the worldwide disaster either.
It may take some more time for COVID-19 to be brought entirely under control in our country and be eventually eliminated but one aspect is very evident. This pandemic is certain to result in a re-ordering of India’s federal structure and relations between the Union and the States. While a united national effort is on to tackle the virus, there are a few discordant voices here and there that question the Union Government’s right to issue directions to the States. The pandemic has also had socio-economic and political effects globally, for example: foreign relations between countries have been strained; world trade has fallen to a new low etc.
In India, the issue deterring the efforts to contain the pandemic is the CentreState relations. This has been a debatable topic for a while now. The guidelines issued by MHA also deal with some of the items enlisted in the state subjects such as public health, law and order and movement from one state to another.
Legal lenses and the orders of the Centre
Article 245 of the Constitution empowers the parliament to form and enforce law in any part of the country, whereas, states are empowered to make laws that apply to the whole or any part of the state. Article 246 of the Constitution demarcates the powers of the Union and the State by classifying their powers into 3 lists, namely Union List, State List and the Concurrent List. The Centre has an authority on the subjects included in the Union List, states on the State List, and both the state and the Centre has an authority on the Concurrent List. But in the condition of repugnancy the central law prevails over the state.
In Paschim Banga Khet Mazdoor Samity and Ors. v. State of West Bengal and Anr., “the Court stated that it is the responsibility of the government to provide medical aid to every person and to work for the welfare of the general public”. This indicates that the center and the states have joint responsibility to look upon the health of the people.
Subjects pertaining to public order and health are listed under State List entry 1 and 6 yet the central government has been issuing guidelines on the subjects which should be exclusively held by the state. The centre has been taking these steps because the lockdown in the country has been implemented under the National Disaster Management Act of 2005 (hereinafter referred to as DMA). The act equips the centre with autonomous financial and administrative control. Thus, the disputes between the centre and the state are ascending over myriad issues.
GOVERNMENT ORDERS AND RESPONSE OF STATES
In the order dated 29th March, the Home Secretary referred to the movement of a large number of migrants in different parts of the country and violation of lockdown measures on maintaining social distance and said that in case of any violation of these directions, the States and Union Territories should take necessary action. The order also made it explicitly clear that the district magistrates and the superintendents of police in the districts “will be personally liable for the implementation of these directions and lockdown measures issued under the above-mentioned orders.”
Thus, to ensure that the orders are not flouted because generally, the district magistrates and superintendents of police are drawn from the Central services and they are well acquainted with the consequences of non-compliance in these matters. Apart from the provisions in the Concurrent List and the DMA, also arms the Centre with powers to handle such crisis.
The state of Kerala has been successfully combating Covid-19 and was ready to revive the economic activities in a planned manner, unless the Centre intervened it’s authority via DMA, 2005.
Goods and Services Tax has been another leading factor which has left the States in despair. Under GST, the tax revenue collected is legitimately entitled by the state governments. But the States are now dependent on the Centre to release these funds to them. In 2017, when GST was authorized and implemented, States were also guaranteed a minimum tax revenue every year for a period of five years. Amidst the Covid-19 crisis both these promises have been snapped.
Before the GST was enacted the states were at the liberty to charge sales taxes as per the orders of their respective state legislatures. Now, during the time of disaster they could have added recuperative measures accompanied with a higher sales tax rate on the goods and services. This would have aided the falling economy of the states with less capital.
Ficus Pax Private Limited with other private firms had to file a writ petition against the MHA’s order about the compulsory payment of wages to workers of the private companies which was not in compliance with the fundamental right of the employer. The state with a lesser ambit than the centre could have handled this issue more intricately than a common order by the centre.
All these decisions created capital crunch in the states. Thus states had to resort to measures as shallow as reopening of the liquor shops.
In the order of the MHA dated 19.04.2020 mentioned about the constitution of the Inter State Ministerial Team (ISMT) to inspect the areas where the violation of lockdown was reported. The ISMT were deputed in the states of Madhya Pradesh, West Bengal, Maharashtra and Rajasthan. The ideological conflict between the Centre and the state of West Bengal was very vividly reflected in the inefficiency of the state government to provide proper information to ISMT which consequently led to wastage to resources and futility of efforts with discrepant results.
WAY FORWARD
In the opinion of the vast majority of the people, the residual loyalty of the citizen in an emergency must be to the Centre and not to the constituent States. For, it is only the Centre that can work for a common end and for the general interests of the country as a whole. Herein lies the justification for giving to the Centre certain overriding powers to be used in an emergency. “After all, what is the obligation imposed upon the constituent States by these emergency powers? No more than this in an emergency, they should take into consideration alongside their own local interests, the opinions and interests of the nation as a whole. Only those, who have not understood the problem, can complain against it. In a country that is as diverse as India, currently, 42 political parties run the States and Union Territories and are tugging in different directions with regard to the plans to fight this epidemic. Only a strong centralizing force with adequate consultations (the Prime Minister has held several rounds of discussions with the Chief Ministers) between the Union and the States can help tackle this problem. We owe it to our founding fathers for creating the Constitutional mechanism to cope with this pandemic and national emergency. Federalism is included in the basic structure of the constitution. The nation which stands outstanding in the world for its unity in diversity can’t afford to come up with such conflicts during the time of pandemic. When the world is trying to stand together, why are we standing apart?
Shivanshu Goswami is an Advocate practising before Allahabad High Court Lucknow bench, his main practise area is criminal law, economic offences and service law. Animesh Upadhyay is a 4th year BA.LLB student at Dr. Ram Manohar Lohiya National Law University, Lucknow.
