The seemingly united front put forth by the centre and states in India’s fight against Covid-19 seems to have given the impression that federalism is being put into practice. But the question is: in India’s war against coronavirus, is it really functioning as a “Union of States” as per the constitutional scheme of things? This should be looked at from both governance and legal perspectives.
Under the Constitution, public health is a state subject and therefore, all matters concerning the prevention, containment and treatment of an epidemic should be dealt with by states. For this purpose, there is a special law called the Epidemic Diseases Act, 1897 (EDA). Section 2 of the EDA gives power to a state government to take special measures and prescribe regulations if it or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic and ordinary provisions of the law which are in force are insufficient for the purpose. These powers include lockdown, quarantine and restrictions on mobility. Section 2A of this Act gives power to the central government to regulate and restrict international travel as well as impose restrictions at ports of entry for any ship or vessel leaving or arriving.
Therefore, while state governments should be at the forefront, the central government is to perform certain core supportive roles. These include international travel and exports; screening at ports of entry; testing strategy and criteria; treatment and drug protocols and the global procurement of emergency supplies. And as the central government controls the “cash chest”, particularly after the GST rollout, it has the responsibility of bankrolling healthcare and humanitarian measures undertaken by states.
So what is the track record of the centre in the performance of its core duties? First, the haphazard travel restrictions and double standards. It was not until March 22, after much confusion and chaos, and with a total of 2,92,142 cases confirmed across more than 150 countries globally, that India finally suspended all international travel. This was more than two months after it issued its first travel advisory. More than 1.5 million people had entered India between mid-January and March 24 when the lockdown was imposed. None of them was screened for anything other than high temperature.
Second was the extreme shortage of Personal Protective Equipment (PPE), especially masks and coveralls, which are essential for safeguarding healthcare workers, and are mandatory under WHO guidelines for Covid-19 treatment. According to one estimate, instead of the 38 million masks and 6.2 million coveralls that were required, only 9.1 million masks and 8,00,000 coveralls were available. The story was not very different with ventilators, the single most important mechanical equipment needed to tackle a severe respiratory illness such as Covid-19. Equally alarming is the shortage of testing kits and delay in domestic production.
As a result, even as infections spread, 123 state-run labs were operating at just 36 percent capacity, while the 49 accredited private labs managed just an average of eight tests each. The centre’s attempts to start domestic production of testing kits were slow and lethargic. The approval process itself was started as late as March 23, at a time when India had 471 confirmed Covid-19 cases. Perhaps the most spectacular disaster was its testing policy, which ensured that India conducted the lowest level of tests in the world—10.5 per million people. And then there was total lack of transparency and denial of community transmission. Indeed, a multi-organ governance failure.
A research paper written by a group of ICMR scientists in February advises against “coercive top down quarantine approaches which are driven by authorities” and instead bats for a community-led method. Accordingly, on March 23, the cabinet secretary and principal secretary to the prime minister, in consultation with state chief secretaries, announced a nuanced “lockdown regime” to contain the corona pandemic in a staggered manner. This started with the shutdown of 78 districts/cities across the country identified as hotspots.
But shockingly, on March 24, Prime Minister Narendra Modi threw all these out and declared a full nationwide lockdown with just four hours notice, thereby ushering in a humongous human disaster. There was no consultation with political parties or state governments. Overnight, millions of urban migrant labour were exposed to double jeopardy—life and livelihood—and left to fend for themselves. On the rural side, MGNREGA jobs crashed to 1 percent of normal and 18 million households employed under this scheme lost their livelihood. All indications, including the gag on the media, suggest that this crippling national lockdown may be a tight lid placed over a “can of worms”.
This draconian lockdown was imposed by invoking the omnibus Section 6 (2)(i) of the Disaster Management Act-2005 (DMA) which empowers the central government “to take such other measures for the prevention of disaster, or the mitigation, or preparedness….” The sole purpose of invoking DMA nationwide was to contain the spread of the virus through strict enforcement of “social distancing”. By the time the lockdown was announced, district magistrates across the country had already imposed curfews under Section 144 of the CrPC. This came in handy to “enforce” the lockdown with utmost police brutality, resulting in massive exodus, overcrowding, cluttering and congestion. At least among 50 percent of the population,“social distancing”—the very essence of a lockdown—just did not happen.
As the deadline for the three-week lockdown approached, the central government became panicky because the coronavirus curve, instead of flattening, was spiralling out of control. When India went into lockdown, it had only around 500 confirmed cases and around 10 deaths. At the end of three weeks, as per figures given by state health departments, these hiked to 10,439 and 358, respectively.
To cover up this serious failure, the central government claimed that if India had not locked down, it would have had at least 8,00,000 infections by April 15. These numbers seem to have been conjured out of thin air to justify the lockdown.
Incidentally, in Kerala, the state which pursued containment policies and practices independent of the central government, the curve had flattened.
A horrendous human crisis stared the central government in the face and Modi resembled Abhimanyu of the Mahabharata who knew the art of breaking into the Chakravyuh, but didn’t know how to come out of it. And he wanted help. So, suddenly he became “federal” and started “consulting” chief ministers and opposition parties through video conferencing, seeking opinion for extending or ending the lockdown.
After several states had announced extension of the lockdown till April 30, one expected the PM to assure the people about the steps taken by the centre to handle the immense humanitarian disaster that was engulfing the country and the support it was giving to states. Instead, on April 14, he extended the lockdown till May 3 and threatened the public with harsher measures. There was no indication of any financial or physical blueprint. Not even the GST refund of Rs 30,000 crore due to states reeling under financial distress was announced.
And instead of decentralising disaster management, which was the need of the hour, Modi centralised it further. He created an opaque “PM Cares” Fund and coerced all government, public and private contributions towards it to the exclusion of the Chief Minister’s Relief Fund. Even procurement of life-saving medical equipment and kits was centralised.
When Modi “consulted” chief ministers on April 11, state governments were made to look like mendicants with a begging bowl. The shopping list given by the Tamil Nadu chief minister to the PM is proof of this:
- Supply PCR & Rapid Test kits in large quantities immediately
- Sanction Rs 3,000 crore to provide PPE, N95 masks and ventilators
- Provide Rs 2,000 per family for workers in the unorganised sector and agriculture
- Allocate Rs 9,000 crore to combat Covid-19 and its aftermath
- Relax fiscal deficit limits of 3 percent of GSDP as a one-time measure for 2019-20 and 2020-21
- Allow additional borrowing of 33 percent above the permitted level for 2019-20 to 2020-21
- Release grants due to states in advance
- Release 50 percent of Finance Commission grants to urban and local bodies now
- Release 50 percent of revenue deficit grant now
- Release GST compensation due for December-January 2019-20 and grants under the National Health Mission immediately
- Double ways and means limit of states and make ways and means advances availed in 2020-21 interest- free.
If anyone has the impression that this is “federalism in practice”, he must be suffering from a delusion born out of the “Stockholm Syndrome”. Psychologists who have studied the Syndrome believe that the captor-captive bond is initially created when the former threatens a captive’s life, deliberates and then chooses not to kill. The captive’s relief at the removal of the death threat is transposed into feelings of gratitude toward the captor.
In the Indian situation, states are the captives and the centre, the captor. Wither federalism?
— The writer is a former Army & IAS officer. He has served as SDM and DM in Haryana and Chandigarh
Lead photo: PIB