Federalism in times of Covid: Pandemic has injected operational unitariness, deserving strict scrutiny by Supreme Court

[by Abhishek Manu Singhvi]

Federalism is a strange creature, full of paradoxes. Nowhere mentioned in the Indian Constitution (not even in the Preamble), federalism is nevertheless a part of its basic structure and unamendable even by a constitutional amendment! While secularism and socialism were included in the Preamble in 1977, federalism was not.

Our founding fathers, beset by apprehensions about the fissiparous tendencies of the nascent republic amidst the divisive, surcharged and fractious ambience of Partition and violence, consciously designed the Indian Constitution as largely a unitary one (charitably called quasi-federal). Yet, in operational reality over seven decades, it has become more and more federal. Finally, turning full circle, Covid has perhaps again made our system significantly more unitary.

Covid has injected operational unitariness in this system and deserves strict scrutiny by the apex court. Read literally, the Disaster Management Act, especially Sections 35, 62, 65, gives a carte blanche to central authorities to do anything and direct anyone down to any sub state unit. Courts must decide whether the dubious fusion of powers from list 1 entry 81 and list 3 entries 3, 6 and 29 gives the Centre power to give far reaching directions, for example, the one relating to mandatory payment of wages under section 10(2) (i) or the supposed mandatory use of the Aarogya Setu app (even after the 9 judge privacy ruling). Legally, I would respond in the negative to both queries.

Unlike the US, where several sovereign, independent countries ceded sovereignty to create a new nation with limited central government powers (the classic example of bottom up federalism), the Indian Republic was the opposite case of limited top down federalism. Our framers put the maximum powers in the exclusive central list 1; allowed full state takeover by the Centre under Article 356 and the sending of central forces to states under Article 355 (both antitheses of federalism); made the Centre the residuary legatee of all unspecified legislative powers by putting a residuary entry only in list 1; created a long concurrent list 3 (present in very few Constitutions), where central legislation trumps state legislation; empowered the Centre to legislate even on exclusive state subjects by special invasive Articles like 249, 250 and 253 (for national interest, during emergencies and to implement treaties).

Scholars have traced the fascinating journey of “unintended, inadvertent or accidental” federalism achieved by India despite the contrary original intent of our founders. Federalism is desirable as an inalienable component of shared/ participatory democracy, acting as a valuable safety valve to channelise the 3Ds of discomfort, dissatisfaction and dissent to decentralised institutions of governance, thereby quarantining conflicts at sub units and preventing explosions at the Centre.

These six facets of unintended and accidental federalism include linguistic federalism, the creation of states on linguistic lines and the stability of the three language formula. Prompt, efficacious and punitive judicial review of President’s rule and floor tests – with cases like Uttarakhand, Karnataka 1 & 2, Maharashtra, Jharkhand, Goa, Arunachal et al mandating floor tests in 48 to 72 hours – have deprived over adventurous invaders of constitutional propriety from enjoying the fruits of their acrobatics. Since 2000, there have been hardly 10 such escapades (as against 100 till 2000) and most have been judicially invalidated, establishing judicial federalism.

The 72nd and 73rd constitutional amendments entrenched 3 tier panchayati raj governance and has the largest number of locally empowered deciding administrative and monetary issues, a triumph of panchayat federalism. Economic federalism was ushered in with delicensing liberalisation from 1991 onwards, which made state CMs at least three times as powerful as a central Cabinet minister. Fiscal federalism has resulted in effective devolution – whether shareable revenues or grants – of about 43% of all central government receipts to states, as against barely 31% a decade ago. Finally, coalition governance and regional political parties are a victory of political federalism.

A major threat to federalism is partisan political appointments of governors, as central government agents acting more royally than the King. This dyarchy of divided sovereignties between appointed governors and elected CMs was most severely castigated, using trenchant words, both by Ambedkar in the Constituent Assembly as also by the Sarkaria Commission.

It has fallen on deaf political ears, irrespective of political colour and the only solution appears to be to appoint renowned international academics, scientists or Nobel laureates as governors. Homilies regarding non-political appointees are not going to work and umbilical cords cannot be severed magically. Absent such drastic reform, the even bigger one of abolition of this post should be considered.

Another threat is the increasingly different political colour of 60% plus of the Indian political map from the colour of the central ruling dispensation. Antagonistic, confrontational and vindictive political approaches rooted in such reasons will be the beginning of the end of the gains of federalism. Statesmanship and perspicacity of an extraordinary degree are required, seen more in the breach (the GST Council being a rare exception).

It is vital in Covid times to recalibrate and reimagine genuine consultative mechanisms for better federal governance. Though states and CMs were drawn into the consultative matrix later on, the initial lockdown decision was completely unilateral. Most of the migrants’ intractable problems arise from such state exclusion. No interstate council has been operationalised as an institutional mechanism for collegiate federal decision making during Covid.

History will judge us harshly if we fritter away the triumphs of federalism in planet Earth’s most diverse spot.

This article was first published on The Times of India on 26 June 2020