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Federalism: Split wide open

Recent disagreements between the Union and states have shown that federalism can succeed only if both run administrations according to the Constitution, constitutionalism and constitutional morality.

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By Lokendra Malik

The Constitution of India provides a federal government system with division of powers between the centre and states. The Supreme Court is the guardian of the Constitution that adjudicates disputes between the centre and states. Comparatively, the centre has more powers to override the states in some situations as the latter are not fully autonomous. The centre can change the names and boundaries of states and also dismiss state governments if they fail to carry on the administration by the constitutional provisions under Article 356.

The president, who is the constitutional head of the Union government, appoints the governor on the prime minister’s advice. The governor plays a significant role as a link between the centre and states. Although states have limited autonomy under the constitutional scheme, the centre is not their master. Within their constitutional boundaries, states are empowered to exercise their powers and functions. State governments secure popular support and constitutional legitimacy.

The Covid-19 pandemic has brought to the fore some of the dominating features of our federal system. Surprisingly, during the first wave of the pandemic, the Union government centralised all powers in its hands and treated states like municipalities or subordinate bodies despite health being a state subject. The centre made several important decisions relating to the lockdown/unlocking under the Disaster Management Act, and the Epidemic Control Act, and states had no option but to act as per its directions.

It is a matter of great satisfaction that the states extended full support to the Union in the war against the pandemic. Interestingly, during the first wave, the prime minister was the chief commander in the war against Covid. He addressed people directly on TV channels many times and announced the lockdown himself without making proper planning and consultation with states. As a result of this Tughlaqi farman, thousands of migrant workers lost their lives and livelihoods.

However, during the second wave of the pandemic, the Modi government deputed powers to states to manage the Covid crisis effectively and asked them to make all necessary decisions about the lockdown/unlocking areas, etc., to contain the spread. It seemed like a well-planned tactic of the centre to shift its burden to states.

Now more than a dozen states have imposed various kinds of lockdowns or curfews to contain the virus. These restrictions are expected to be in force at least for a few more weeks until the curve comes down. Sadly, lakhs have died during the second wave because of the shortage of oxygen, hospital beds and essential drugs. All governments have failed the people miserably. The pandemic has badly exposed the public health system of the country.

During the second wave, a confrontation was noticed between the Union and states on various issues such as the availability of essential drugs and vaccines that need urgent solutions. Some states believe that the central government has abandoned them as far as the issue of vaccines is concerned. This was mostly observed in states governed by the non-BJP governments, such as Delhi, West Bengal, Jharkhand and Maharashtra, which have political differences with the Modi government. Needless to say, better coordination is needed to win the war against the pandemic.

The centre owes a big responsibility to provide sufficient vaccines and drugs to states to save people’s lives by rising above party-level differences and ideologies. This is the time when all governments should fight collectively against the invisible enemy that has ruined millions of lives. Both the centre and states are required to act jointly for protecting lives and livelihoods given their collective duties, commitments and constitutional mandate to serve the people of India.

A few days ago, Prime Minister Narendra Modi called a meeting of some district magistrates (DMs) and chief ministers (CMs) to discuss the Covid situation. After the meeting, West Bengal Chief Minister Mamata Banerjee came down heavily on Modi and criticised him for bypassing states and taking chief ministers lightly. She alleged that Modi did not allow them to speak in the meetings and she felt humiliated. She is not the first CM who has complained against the prime minister. The Jharkhand CM Hemant Soren has also said that the prime minister does not listen to states and believes in one-way communication. He said that Modi should also listen to the states to solve their problems.

Admittedly, these developments reflect poorly on the working of the federal government and justify the need for better centre-state coordination to contain the crisis. Undoubtedly, the prime minister and other Union ministers have the right to get feedback/suggestions from state officers, but only if they take the elected governments into confidence. CMs must be involved in such deliberations and be heard with patience and deference. It will strengthen our cooperative federal system.

Nothing is wrong if the prime minister talks to the DMs or other state officers. This kind of interaction is a must to run the administration in a federal democracy. But the constitutional dignity of states should also be honoured by taking them into confidence. It would be helpful to have a better understanding between the stakeholders.

A federal system can be made successful only if both the Union and states run administrations according to the fundamental principles of the Constitution, constitutionalism and constitutional morality, a concept advocated by well-known jurist and a distinguished statesman Salman Khurshid. In states, the DMs mostly belong to the Indian Administrative Service, which is effectively controlled by the central government. They spend some time on central deputation also. At that time, they act as per the directions of the centre, but when they discharge their duties under the state, they have to follow the directions/ instructions of that government led by the CM.

And no CM will appreciate central ministers or even the prime minister talking to his/her officers directly without engaging him/her in such conversations. CMs are elected constitutional functionaries whose voices matter a great deal and the centre should listen to them.

Read Also: National Green Tribunal says industries can’t operate without prior environmental clearance

One remembers the insightful words of the Supreme Court in the Delhi government case: “The Union Government and the State Governments should endeavour to address the common problems with the intention to arrive at a solution by showing statesmanship, combined action and sincere cooperation. In collaborative federalism, the Union and the State Governments should express their readiness to achieve the common objective and work together for achieving it. In a functional Constitution, the authorities should exhibit sincere concern to avoid any conflict. This concept has to be borne in mind when both intend to rely the constitutional provision as the source of authority. We are absolutely unequivocal that both the Centre and the States must work within their spheres and not think of any encroachment. But in the context of exercise of authority within their spheres, there should be perception of mature statesmanship so that the constitutionally bestowed responsibilities are shared by them. Such an approach requires continuous and seamless interaction between the Union and the State Governments.”

—The writer is Advocate, Supreme Court of India

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