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
Centre-State 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
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
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
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.
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 centralising 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
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?
- A.S. Krishna v. State of Madras, 1957 AIR 297
- Shivanshu Goswami is an Advocate practising before Allahabad High Court
Lucknow bench, his main practise area is criminal law, economic offences and
service law he also represents public and private corporations. and
- Animesh Upadhyay is a 4th Year Law Student at Dr. Ram Manohar Lohiya
National Law University, Lucknow.