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GS Paper: Federalism

  • Issues over Delimitation in the Northeast

    The Election Commission has red-flagged the Union government’s order setting up a Delimitation Commission for Arunachal Pradesh, Manipur, Assam and Nagaland, calling it “unconstitutional” and “illegal”. When delimitation last took place in the rest of the country in 2002-08, these states had been left out.

    Try this question from CSP 2017:

    Q.Consider the following statements:

    1. The Election Commission of India is a five-member body.
    2. Union Ministry of Home Affairs decides the election schedule for the conduct of both general elections and bye-elections.
    3. Election Commission resolves the disputes relating to splits/mergers of recognized political parties.

    Which of the statements given above is/are correct?

    (a) 1 and 2 only

    (b) 2 only

    (c) 2 and 3 only

    (d) 3 only

    What is delimitation and why is it needed?

    • Delimitation is the act of redrawing boundaries of Lok Sabha and Assembly seats to represent changes in population.
    • In this process, the number of seats allocated to a state may also change.
    • The objective is to provide equal representation for equal population segments and a fair division of geographical areas so that no political party has an advantage.
    • The Delimitation Commission’s orders cannot be questioned before any court.

    Legal status

    • Delimitation is carried out by an independent Delimitation Commission (DC).
    • The Constitution mandates that its orders are final and cannot be questioned before any court as it would hold up an election indefinitely.

    How is delimitation carried out?

    • Under Article 82, the Parliament enacts a Delimitation Act after every Census.
    • Once the Act is in force, the Union government sets up a DC made up of a retired Supreme Court judge, the Chief Election Commissioner and the respective State Election Commissioners.
    • The Commission is supposed to determine the number and boundaries of constituencies in a way that the population of all seats, so far as practicable, is the same.
    • The Commission is also tasked with identifying seats reserved for Scheduled Castes and Scheduled Tribes; these are where their population is relatively large.
    • All this is done on the basis of the latest Census and, in case of difference of opinion among members of the Commission, the opinion of the majority prevails.

    Northeast’s concerns

    • In the last delimitation exercise, completed in 2008, Arunachal, Manipur, Assam, Nagaland were kept out due to apprehensions overuse of the 2001 Census.
    • The Centre’s move to club the four with J&K comes in the backdrop of unrest in the region over CAA.

    Why were these four states left out in 2002-08?

    • In Arunachal Pradesh, Assam, Manipur and Nagaland, various organisations had moved the Gauhati High Court against the 2002-08 exercise, challenging the use of the 2001 Census for reference.
    • From Assam, an all-party delegation met then Home Minister pleading that delimitation is called off because the National Register of Citizens (NRC) was yet to be updated.
    • The Delimitation Act was amended in 2008, and on February 8, 2008, Presidential orders were issued to defer delimitation in these four states.

    So, when did the government decide to resume delimitation?

    • In February this year, President Kovind cleared the decks for the resumption of the delimitation exercise in the four states by cancelling the earlier order.
    • It noted that there had been a reduction in insurgency incidents, making the situation conducive for carrying out delimitation.

    Will delimitation change the number of seats in these states?

    • Not in the four Northeast states. There is a freeze until 2026 on the number of Lok Sabha and Assembly seats in any state.
    • Delimitation will only redraw the boundaries of seats in each state and can rework the number of reserved seats for SCs and STs.
    • However, because of exceptional past circumstances, Jammu & Kashmir’s Assembly seats will now increase from 107 to 114, which is expected to increase the Jammu region’s representation.

  • Enabling people to govern themselves

    The article examines the issues exposed by the pandemic with the current system of governance in India as well as the global level. Strengthening the local governments is suggested as the need of the hour.

    How pandemic exposed the limits of systems

    • Governance systems at all levels, i.e. global, national, and local, have experienced stress as a fallout of the COVID-19 pandemic.
    • There was a breakdown in many subsystems in health care, logistics, business, finance, and administration.
    •  Solutions for one subsystem backfired on other subsystems.
    • For example, lockdowns to make it easier to manage the health crisis have made but it was disastrous for the economy.

    Following 3 are the problems exposed in the governance

    1) Mismatch in abilities and functions

    • Human civilisation advances with the evolution of better institutions to manage public affairs.
    • Institutions of parliamentary democracy did not exist 400 years ago.
    • Institutions of global governance, such as the United Nations and the World Trade Organization, did not exist even 100 years ago.
    • These institutions were invented to enable human societies to produce better outcomes for their citizens.
    • The pandemic has revealed a fundamental flaw in their design.
    • There is a mismatch in the design of governance institutions at the global level with the challenges they are required to manage.

    2) Interconnected issues

    • All 17 Sustainable Development Goal are interconnected with each other.
    • Environmental, economic, and social issues cannot be separated from each other.
    • Experts working in silos or by agencies focused only on their own problems cannot solve these problems.
    • As government responses to the novel coronavirus pandemic have revealed, a good solution to one can create more problems for others.

    3) Local solution requires local problems

    • Even if experts in different discipline arrives at silo-ed solutions at the global level, they will not be able to solve the systemic problems of the SDGs.
    • Because, their solutions must fit the specific conditions of each country, and of each locality within countries too, to fit the shape of the environment and the condition of society there.
    • Solutions for environmental sustainability along with sustainable livelihoods cannot be the same in Kerala and Ladakh.
    • Solutions must be local.
    • For the local people to support the implementation of solutions, they must believe the solution is the right one for them.

    Decentralisation of governance

    • Governance of the people must be not only for the people. It must be by the people too.
    • There are scientific explanations for why local systems solutions are the best.
    • Elinor Ostrom, the first woman to win the Nobel Prize in Economics, had developed the principles for self-governing communities from research on the ground in many countries, including India.
    • Indian Constitution requires devolution of powers to local government too.
    • During pandemic States in India, such as Kerala, have weathered the storm better than others.
    • A hypothesis is that those States and countries in which local governance was stronger have done much better than others.

    Consider the question “Examine the issues with the current system of governance which were exposed by the pandemic. Also explain why decentralisation could improve many problems the governance faces.

    Conclusion

    The government has to support and enable people to govern themselves, to realise the vision of ‘government of the people, for the people, by the people’. Which is also the only way humanity will be able to meet the ecological and humanitarian challenges looming over it in the 21st century.

    Original article:

    https://www.thehindu.com/opinion/lead/enabling-people-to-govern-themselves/article32071943.ece

  • For the sake of sound fiscal federalism

    Faultlines in the Centre-State fiscal relations have widened due to Covid. This article examines how States are not getting what they should as per the 14th Finance Commission report.

    Centre-state tussle

    • The tussle for the rights of States has been focused on Article 356.
    • Partial behaviour by the Governors, regional party governments were politically destabilised.
    • Little was done to implement the report of  Justice R.S. Sarkaria Commission on Centre-State relations.
    • The new faultline in the Centre-State relation could be over the way report of 14th Finance Commission is being implemented.
    • This began well before COVID-19, but the pandemic and its economic disruption have brought things to an edge.

    Issues over the implementation of 14th Finance Commission report

    • The 14th Finance Commission report in 2015 promised devolution of more finances to the States.
    • As part of the process, States would have new responsibilities, especially in the social sector.
    •  The Goods and Services Tax (GST) regime was also justified as a grand bargain that would eventually leave all States better off.
    • In reality, tax devolution to States has been consistently below 14th Finance Commission projections.
    • One reason for this has been the economic slowdown, and lower-than-expected GST collections.
    • The shortfall in GST collection for 2018-2019 was 22% when compared to projections.
    • Payments to the States have been delayed as well.
    • There is a ₹6.84 lakh crore gap between what the 14th Finance Commission promised to States and what they have received.
    • States undertook programmes and projects spending 46% more than the Central Government; today the figure is 64%.
    • Despite spending less than the states the Centre’s fiscal deficit exceeds the consolidated State deficit by 14%.

    Need to revisit the FRBM provisions

    • Due to pandemic, the fiscal deficit for States, collectively, is inevitably going to breach the projection of 2.04%.
    • As per provisions of the Fiscal Responsibility and Budget Management (FRBM) Act, the GSDP can actually accommodate a fiscal deficit of 3%.
    • Now, post-pandemic, this limit will be crossed.
    • The FRBM has an “escape clause” that allows for a one-time relaxation of the fiscal deficit threshold upto 0.5% in a time of exigency.
    • The escape clause has been utilised by the Centre but it has proven woefully insufficient in addressing the current crisis.
    • Fiscal policymakers and technocrats agree that the rigidity of the FRBM has to be revisited.
    • It should allow for greater flexibility and consultation as to when and how the “escape clause” can be applied.
    • The Centre has gone in for subjective interpretation, imposing conditions that are outside the scope of the FRBM.

    Consider the question “Fiscal tensions have emerged as  a new front in the Centre-State relations. Suggest the steps the Centre should take to address it.”

    Conclusion

    Centre government needs to be more considerate of the financial woes of the State and try to deliver on the recommendations of the 14th Finance Commission report.

  • Article 371A and Nagaland

    In a scathing letter to CM, Nagaland Governor has said the “scenario in the State is grim” and that “law and order has collapsed”.

    Practice question for mains:

    Q.Discuss the success of Naga Peace Accord in light of the ongoing law and order crisis in the state.

    Nagaland (Article 371A, 13th Amendment Act, 1962)

    • Parliament cannot legislate in matters of Naga religion or social practices, the Naga customary law and procedure, administration of civil and criminal justice involving decisions according to Naga customary law.
    • Parliament also cannot intervene in ownership and transfer of land and its resources, without the concurrence of the Legislative Assembly of the state.
    • This provision was inserted in the Constitution after a 16-point agreement between the Centre and the Naga People’s Convention in 1960, which led to the creation of Nagaland in 1963.
    • Also, there is a provision for a 35-member Regional Council for Tuensang district, which elects the Tuensang members in the Assembly.
    • A member from the Tuensang district is Minister for Tuensang Affairs. The Governor has the final say on all Tuensang-related matters.

    What is the issue?

    • Challenging the legitimacy of the government without any resistance from the State law and order machinery has created a crisis of confidence in the system.
    • The constitutional establishment is being challenged on a day-to-day basis by armed gangs who question the integrity and sovereignty of the nation.
    • The instruments of law and order have remained totally unresponsive.

    Armed militancy is back again

    • Their armed miscreants appoint their own dealers for every commodity from salt to construction material coming into the State and levy illegal taxes on every item.
    • There is over 200% cost escalation in transportation the moment a goods laden truck enters Nagaland due to gunpoint extortions by the armed miscreants.

  • Explained: How are elections to the Rajya Sabha held?

    Another round of Rajya Sabha elections has been completed. There are several features that distinguish elections to the Council of States, or the Upper House of Parliament, from the general elections.

    Do you know?

    • Only two UTs elect members to the Rajya Sabha, not all.
    • Polling is held only if the number of candidates exceeds the number of vacancies.
    • Independent members can also be elected etc.

    Read this newscard for all such interesting facts which can be directly asked in the prelims.

    What is so peculiar about the Rajya Sabha polls?

    • A third of MPs in the Rajya Sabha (which is a permanent House and is not subject to dissolution), from each State, retire once in two years and polls are held to fill up the vacancies.
    • Only elected members of the State Legislative Assemblies can vote in a Rajya Sabha election.
    • The legislators send a batch of new members to the Upper House every two years for a six-year term.
    • In addition, vacancies that arise due to resignation, death or disqualification are filled up through by-polls after which those elected serve out the remainder of their predecessors’ term.

    Composition of Rajya Sabha

    • A bloc of MPs belonging to one or more parties can elect a member of their choice if they have the requisite numbers.
    • This is to avoid the principle of majority, which would mean that only candidates put up by ruling parties in the respective States will be elected.
    • The Delhi and Puducherry Assemblies elect members to the Rajya Sabha to represent the two UTs.

    What is the election process?

    • Polling for a Rajya Sabha election will be held only if the number of candidates exceeds the number of vacancies.
    • Since the strength of each party in the Assembly is known, it is not difficult to estimate the number of seats a party would win in the Rajya Sabha poll.
    • In many states, parties avoid a contest by fielding candidates only in respect to their strength. Where an extra candidate enters the fray, voting becomes necessary.
    • Candidates fielded by political parties have to be proposed by at least 10 members of the Assembly or 10% of the party’s strength in the House, whichever is less.
    • For independents, there should be 10 proposers, all of whom should be members of the Assembly.

    Voting procedure

    • Voting is by single transferable vote, as the election is held on the principle of proportional representation.
    • A single transferable vote means electors can vote for any number of candidates in order of their preference.
    • A candidate requires a specified number of first preference votes to win. Each first choice vote has a value of 100 in the first round.
    • To qualify, a candidate needs one point more than the quotient obtained by dividing the total value of the number of seats for which elections are taking place plus one.

    Example: If there are four seats and 180 MLAs voting, the qualifying number will be 180/5= 36 votes or value of 3,600.

    Why do not the Rajya Sabha polls have a secret ballot?

    • The Rajya Sabha polls have a system of the open ballot, but it is a limited form of openness.
    • As a measure to check rampant cross-voting, which was taken to mean that the vote had been purchased by corrupt means.
    • There is a system of each party MLA showing his or her marked ballots to the party’s authorised agent (called Whip), before they are put into the ballot box.
    • Showing a marked ballot to anyone other than one’s own party’s authorised agent will render the vote invalid.
    • Not showing the ballot to the authorised agent will also mean that the vote cannot be counted.
    • And independent candidates are barred from showing their ballots to anyone.

    Is there any NOTA option in voting?

    • The ECI issued two circulars, on January 24, 2014, and November 12, 2015, giving Rajya Sabha members the option to press the NOTA button in the Upper House polls.
    • However, in 2018, the Supreme Court struck down the provision, holding that the ‘none of the above’ option is only for general elections.
    • It cannot be applied to indirect elections based on proportional representation.

    Does cross-voting attract disqualification?

    • The Supreme Court, while declining to interfere with the open ballot system, ruled that not voting for the party candidate will not attract disqualification under the anti-defection law.
    • As voters, MLAs retain their freedom to vote for a candidate of their choice.
    • However, the Court observed that since the party would know who voted against its own candidate, it is free to take disciplinary action against the legislator concerned.

    Can a legislator vote without taking oath as a member of the Assembly?

    • While taking oath as a member is for anyone to function as a legislator, the Supreme Court has ruled that a member can vote in a Rajya Sabha election even before taking oath as a legislator.
    • It ruled that voting at the Rajya Sabha polls, being a non-legislative activity, can be performed without taking the oath.
    • A person becomes a member as soon as the list of elected members is notified by the ECI, it said.
    • Further, a member can also propose a candidate before taking the oath.

  • Need for fiscal decentralisation

    Covid pandemic has turned the fiscal health of states from bad to worse. This article highlights the role of the Finance Commission as a neutral arbiter in the Centre-state relation in achieving the delicate balance. It has highlighted certain issues that the commission has to consider when it submits its report. So, what are those issues? Read to know…

    Disruption in fiscal consolidation and impact on Centre-state relations

    • Due to COVID, there is a  collapse in general government revenues and the consequent rise in the deficit levels.
    • It has disrupted the glide path of fiscal consolidation.
    • But it has also deepened the faultlines in Centre-state fiscal relations. 
    • The Centre is trying to claw back the fiscal space ceded to the states and assert its dominance over the country’s fiscal architecture.
    • This coupled with the fiscal constraints exposed by the pandemic have made it harder to maintain the delicate balance needed to manage the contesting claims of the Centre and the states

    Why the 15th Finance Commission report is critical for decentralisation

    • It will be ironic if the ongoing health crisis that has ended up exposing the limitations of a centralised approach, ends up reversing the trend towards fiscal decentralisation.
    • The Commission’s report will be critical on two counts:
    • First, it will determine how India’s fiscal architecture is reshaped.
    • Second, how Centre-state relations are reset as the country attempts to recover from the COVID-19 shock.

    1. Will the burden of reducing debt/gdp  fall equally on Centre and state?

    • The glide path of fiscal consolidation laid out by the FRBM review committee had envisaged bringing down general government debt to 60 per cent of GDP by 2022.
    • This is unlikely to materialise now.
    • Factoring in the additional borrowings, the debt-to-GDP ratio may well be over 80 per cent this year.
    • Thus the fiscal consolidation roadmap will have to be reworked.
    •  As per its terms of reference, the Finance Commission will lay out the new path to be followed by both Centre and states.
    • But the question is: Will the burden of debt reduction fall equally upon the Centre and states?
    • Or will the Commission allow the Centre to have greater leeway when it comes to fiscal consolidation?

    2. Will the conditional extension of borrowing limit be formalised?

    •  Recently, the Centre eased the states’ budget constraint, allowing them to borrow more this year.
    • But this extra borrowing was conditional upon states implementing reforms in line with the Centre’s priorities.
    • Despite protests, most states are likely to comply with the conditions, to varying degrees.
    • But the issue is: As the hit from the ongoing crisis spreads over multiple years, state governments may want to maintain their expansionary fiscal stance next year as well.
    • Then, will the Finance Commission, in line with its terms of reference, go along with the Centre’s stance and recommend imposing conditions on additional borrowing and formalise this arrangement?
    • It is difficult to see such an arrangement being rolled back once formalised.

    3. GST compensation cess

    • The GST council, in which the Centre effectively has a veto, is yet to clearly spell out its views on the extension of the compensation cess to offset states losses beyond the five-year period.
    • The Commission will have to weigh in on this too.
    • At this time the Centre is struggling to fulfil its promise of assuring states their GST revenues.
    • In such situation, will the Commission argue in favour of extending the compensation period, as states desire, but, perhaps, lowering the assured 14 per cent growth in compensation and linking it to nominal GDP growth?
    • As GST revenue accounts for a significant share of states’ income, how this plays out will also have a bearing on their ability to bring down their debt levels.

    4. Issue of tax devolution

    • In some sense, accepting the recommendations of the 14th Finance Commission was a fait accompli.
    • The terms of reference of the 15th Finance Commission points to the present government’s desire to claw back the fiscal space offered to the states.
    • But is clawing back fiscal space now a prudent approach?
    • A cash-strapped Centre will surely welcome greater say over the diminished resources.
    • And there a strong argument for the Centre to have far greater fiscal space than it currently enjoys.
    • This is partly because the fiscal multiplier of central government capital spending is greater than that by the states.
    • But also the nature of politics may well push in that direction.
    • Centralisation of political power may well lead to demands for centralisation of resources.
    • However, surely fiscal space can be created by a review of the Centre’s own spending programme.

    Need to relook at the Centre’s expenditure priorities

    • Over the past decades, there has been a substantial increase in the Centre’s spending on items on the state and concurrent list.
    •  This shift has occurred even as grants by the Centre to states exceed the former’s revenue deficit.
    • This, as some have pointed out, effectively means that the Centre is borrowing to transfer to states.
    • Surely, a relook at the Centre’s expenditure priorities would create greater fiscal space for it.

    What the Finance Commission can do?

    • Any attempt to shift the uneasy balance in favour of the Centre will strengthen the argument that this government’s talk of cooperative federalism serves as a useful mask to hide its centralising tendencies.
    • As a neutral arbiter of Centre-state relations, the Finance Commission should seek to maintain the delicate balance in deciding on contesting claims.
    • This may well require giveaways especially if states are to be incentivised to push through legislation on items on the state and concurrent list.
    • The fiscal stress at various levels of the government necessitates a realistic assessment of the country’s macro-economic situation, the preparation of a medium-term roadmap, as well as careful calibration of the framework that governs Centre-state relations.
    • At this critical juncture, the Finance Commission should present the broad contours of the roadmap.
    • Though it could request for another year’s extension to present its full five-year report citing the prevailing uncertainty.

    Consider the question “COVID pandemic has put the States in the dire fiscal position. What we need is more of the fiscal decentralisation now.” In light of this, along with other factors, elaborate on the role 15th Finance Commission could play in this regard.

    Conclusion

    Finance Commission has to play an important role in achieving the delicate balance in the conflicting domain of finance by addressing the concerns of both the players.

  • Gairsain to be Uttarakhand new Summer Capital

    The Uttarakhand Governor has given her assent for declaration of Bhararisen (Gairsain) in Chamoli district as its summer capital.

    Practice question:

    Q. Discuss the feasibility of having multiple administrative capitals for some states in India.

    Gairsain

    • Gairsain is situated at the eastern edge of the vast Dudhatoli mountain range, located almost at the centre of the state, at a distance of approximately 250 kilometres from Dehradun.
    • It is easily accessible from both the Garhwal and the Kumaon divisions, and in a way, acts as the bridge between the two regions.
    • The state Assembly is located in Dehradun, but sessions are held in Gairsain as well.

    Why Gairsain is held as summer capital?

    • Gairsain was best suited to be the capital of the mountainous state as it was a hilly region falling on the border of Kumaon and Garhwal regions.
    • Even when Uttarakhand was carved out as a separate state from UP on November 9, 2000, statehood activists had contended that Gairsain was best suited to be the capital.
    • But it was Dehradun in the plains that were named the temporary capital. The issue is largely political.

    What are the other examples of multiple capital cities?

    • Several countries in the world have implemented the concept.
    • In Sri Lanka, Sri Jayawardenepura Kotte is the official capital and seat of the national legislature, while Colombo is the de facto seat of the national executive and judicial bodies.
    • Malaysia has its official and royal capital and seat of the national legislature at Kuala Lumpur, and Putrajaya is the administrative centre and seat of the national judiciary.
    • Among Indian states, Maharashtra has two capitals– Mumbai and Nagpur (which holds the winter session of the state assembly).
    • Himachal Pradesh has capitals at Shimla and Dharamshala (winter).
    • The former state of Jammu & Kashmir had Srinagar and Jammu (winter) as capitals (remember Darbar Move).

    Also read:

    https://www.civilsdaily.com/news/concept-of-three-capitals-in-andhra-pradesh/

  • Jammu and Kashmir notifies amended domicile certificate rules

    The J&K administration has notified the J&K grant of domicile certificate procedure rules 2020 and set a fast track process in motion to issue the certificates within a stipulated time of 15 days.

    Practice mains question:

    Discuss how the new domicile rules for the UT of Jammu and Kashmir would enable its full integration with the mainstream India.

    New domicile rules

    • Domicile certificates have now been made a basic eligibility condition for appointment to any post under the Union Territory of J&K following the amendments in the previous Act.
    • These rules provide a simple time-bound and transparent procedure for issuance of domicile certificates in such a manner that no category of person is put to any inconvenience.
    • There is a timeline of 15 days for issuance of certificates. Under the amended rules, eligible non-locals can also apply for the certificate.
    • To make the process transparent and time-bound, any officer not able to issue the certificate would be penalized ₹50,000. The amount would be recovered from his salary.
    • The new process will allow West Pakistan refugees, safai karamcharis and children of women who married non-locals to apply for jobs here.

    Who can avail the domicile certificates?

    • All Permanent Resident Certificate holders and their children living outside J&K can apply for the certificates.
    • Kashmiri migrants living in or outside J&K can get domicile certificates by simply producing their Permanent Residence Certificate (PRC), ration card copy, voter card or any other valid document.
    • A special window is also provided to migrants who have not registered with the Relief and Rehabilitation department.
    • Bonafide migrants can apply with the Relief and Rehabilitation department by providing documents like electoral rolls of 1988, proof of registration as a migrant in any State in the country or any other valid document.

    Earlier Criteria for Domiciles

    Satisfying any of the criteria mentioned below, a person would be deemed as a domicile of the UT of Jammu and Kashmir:

    • A person who has resided for a period of 15 years in the UT of J&K or
    • A person who has studied for a period of seven years and appeared in Class 10th/12th examination in an educational institution located in the UT of J&K
    • Someone who is registered as a migrant by the Relief and Rehabilitation Commissioner (Migrants)
    • Children of Central government officials, All India Services, PSUs, autonomous body of Centre, Public Sector Banks, officials of statutory bodies, Central Universities, recognised research institutes of Centre who have served in J&K for a total period of 10 years
    • Children of such residents of J&K who reside outside J&K in connection with their employment or business or other professional or vocational reasons but their parents fulfil any of the conditions provided

    Job criteria for new domiciles

    • The domiciles will be eligible for the purposes of appointment to any post carrying a pay scale of not more than Level 4.
    • The Level 4 post comprises positions such as gardeners, barbers, office peons and waterman and the highest rank in the category is that of a junior assistant.
    • The reservation for domiciles would not apply to Group A and Group B posts, and like other UTs, recruitment would be done by the UPSC.

    Must read:

    [Burning Issues] J&K New Domicile Rules

  • Cooperative Federalism in the Time of Covid-19

    Federalism is part of Basic Structure (Doctrine) of the Constitution. The article is about the lack of cooperative federalism in some of the Central Government’s actions in its fight against the corona crisis. What are those actions? Read to know…

    Opinion of political thinkers on federalism in India

    • K.C. Wheare notes, federalism traditionally signifies the independence of the Union and State governments of a country, in their own spheres.
    • The members of India’s Constituent Assembly carefully studied the Constitutions of other great federations like the US, Canada, Australia and Switzerland.
    • However, they adopted a ‘pick and choose’ policy to formulate a system suited uniquely to the Republic’s need.
    • As a result, India’s Constituent Assembly became the first-ever constituent body in the world to embrace what H. Birch and others have referred to as ‘cooperative federalism’.
    • ‘Cooperative federalism’ is administrative cooperation between the Centre and the States, and a partial dependence of the States upon payments from the Centre.
    • Accordingly, Indian constitutional law expert Granville Austin remarks that despite a strong Centre, cooperative federalism doesn’t necessarily result in weaker States.
    • He also said that the progress of the Republic rests upon active cooperation between the two.

    Lack of consultation with States under DMA 2005

    • The zone classifications into ‘red’ and ‘orange’ has evoked sharp criticisms from several States.
    • The States have demanded more autonomy in making such classifications.
    • The Disaster Management Act of 2005 under which binding COVID-19 guidelines are being issued by the Centre to the States mandates consultation with the States.
    • The Act envisages the creation of a ‘National Plan’ under Section 11, as well as issuance of binding guidelines by the Centre to States under Section 6(2), in furtherance of the ‘National Plan’.
    • The ‘National Plan’ then is a broader vision document while the binding guidelines are its enforcement mechanism.
    • Now, Section 11(2) of the Act mandates State consultations before formulating a ‘National Plan’.
    • And when such binding guidelines are ultimately issued under it, they are expected to represent the views of the States.
    • However, the Centre has not formulated the ‘National Plan’, and has chosen instead to respond to COVID-19 through ad hoc binding guidelines issued to States.
    • Such guidelines thereby circumvent the legislative mandate of State consultations.
    • This selective application of the Act serves to concentrate all decision-making powers with the Centre.

    Lack of funds

    • The Centre has declared that corporations donating to PM-CARES can avail CSR exemptions, but those donating towards any Chief Minister’s Relief Fund cannot.
    • This directly disincentivises donations to any Chief Minister’s Relief Fund.
    • And diverts crores in potential State revenues to PM-CARES; and makes the States largely dependent upon the Centre.
    • Further, the revenue streams of several States have dried up because of the liquor sale ban; negligible sale of petrol/diesel; no land dealings and registration of agreements.
    • States’ GST collections have also been severely affected with their dues still not disbursed by the Centre.
    • All this has made it difficult for States to defray expenses of salaries, pensions and welfare schemes.
    • As it is the States which act as first responders to the pandemic, supplying them with adequate funds becomes a pre-requisite in effectively tackling the crisis.
    • This requires the Centre to view the States as equals, and strengthen their capabilities, instead of increasing their dependence upon itself.

    Consider the question-“Cooperative federalism is the key in the country’s fight against the corona pandemic. Critically examine.”

    Conclusion

    Keeping the spirit of cooperative federalism alive whether in consultation with the States or taking care of their finances is essential as the country is fighting the pandemic. The Centre must realise that we have the best chance of winning the war against pandemic when we are united.

  • Legal aspects of using Disaster Management Act to deal with pandemic

    This article analyses the legal basis of application of the Disaster Management Act to deal with the pandemic by the Central Government. The Disaster Management Act had been enacted using the residuary power of the Union legislature. So, its application to deal with the pandemic gives rise to certain legal issues. Read to know more about such issues.

    Two examples of why centralised approach may be counter-productive?

    • One, the Central government has classified all districts in the country as red, orange or green zones.
    • This classification was done in a bid to lift lockdown restrictions in an area-specific manner.
    • Some States/Union Territories objected to the classification of certain areas/districts as red zones on the ground that these areas are very large.
    • They pointed out that there was no need to keep economic activity on hold in an entire district when cases had been reported only from a small portion of that district.
    • Two, Kerala, probably the best-performing State in terms of its response to COVID-19, was sent a missive by the Central government to refrain from relaxing restrictions in the State.
    • The Central government did not trust the wisdom and judgment of the State government in the matter.

    The federal scheme and residuary power to legislate

    • Under the federal scheme, Parliament can legislate on matters under the Union List (List I).
    • Stage legislatures can legislate on matters under the State List (List II).
    • And both Parliament and State legislatures can legislate on matters under the Concurrent List (List III).
    • The residuary power to legislate on matters that are not mentioned in either List II or List III vests with Parliament under Article 248 of the Constitution read with Entry 97 of List I.
    • Furthermore, the rule of harmonious construction dictates that the entries in the legislative lists must be interpreted harmoniously.
    • And in the event of any overlap between two or more entries, the specific subject matter contained in a particular entry must be deemed to have been excluded from another entry which may deal with a more general subject matter.
    • Finally, as per Articles 73 and 162, the executive power of the Centre and the States is co-extensive with their respective legislative powers.
    • Coextensive legislative and executive power means that the Central and State governments can only take executive actions in matters where Parliament and State legislatures, respectively, have powers to legislate.

    So, which list contains Disaster Management?

    • Disaster management as a field of legislation does not find mention in either List II or List III.
    • Nor does any particular entry in List I specifically deal with this.
    • Thus, the Disaster Management Act could only have been enacted by Parliament in the exercise of its residuary powers of legislation under Article 248 read with Entry 97 of List I.

    Legal problems in using Disaster Management Act for pandemic

    • The Disaster Management Act allows the Centre to issue guidelines, directions or orders to the States for mitigating the effects of any disaster.
    • The definition of ‘disaster’ under the Act is quite broad and, literally speaking, would include a pandemic too.
    • Such a reading of the Act would vest the Central government with powers to issue directions and guidelines to State governments for dealing with the pandemic in their States.
    • However, ‘public health and sanitation’ is a specific field of legislation under Entry 6 of List II.
    • This would imply that States have the exclusive right to legislate and act on matters concerning public health.
    • Thus, the Centre’s guidelines and directions to the States for dealing with the pandemic trench upon a field of legislation and executive action that is exclusively assigned to the States — public health.
    • The Supreme Court has held time and again that federalism is a basic feature of the Constitution and the States are sovereign.
    • The Disaster Management Act cannot be applied to pandemics in view of the fact that the power to legislate on public health is vested specifically and exclusively with the States.
    • Also, under Entry 29 of List III, both Parliament and State legislatures are competent to legislate on matters involving inter-State spread of contagious or infectious diseases.
    • Therefore, theoretically speaking, Parliament would be competent to pass a law that allows the Central government to issue directions to the States to prevent inter-State spread of a disease like COVID-19.
    • That law is not the Disaster Management Act which is concerned with disasters in general, and not pandemics in particular.
    • ‘Prevention of inter-State spread of contagious and infectious diseases’ being a specific legislative head provided in List III, the same must be deemed to have been excluded from Parliament’s residuary legislative powers.
    • Therefore, the Disaster Management Act, which has been enacted under Parliament’s residuary legislative powers, cannot be applied to the prevention of the inter-State spread of contagious and infectious diseases.

    Role of Centre under Epidemic Diseases Act 1897

    • The Epidemic Diseases Act, 1897, has the objective of preventing “…the spread of dangerous epidemic diseases.”
    • However, under this Act, it is the State governments which have the prerogative to take appropriate measures for arresting the outbreak or spread of a contagious or infectious disease in their respective States.
    • The Central government’s powers are limited to taking measures for inspecting and detaining persons travelling out of or into the country.
    • Even if that Act were to be amended, it would not empower the Central government to issue directions to the States to contain the pandemic within the State.
    • It can only deal with the inter-State spread of the disease.

    Consider the question, “Use of the Disaster Management Act to deal with the Covid-19 pandemic gave rise to certain legal issues. Examine them.”

    Conclusion

    Instead of resorting to the Epidemic Diseases Act which gives powers to the States, the Centre has applied the Disaster Management Act. The States are not legally bound to observe the directions/guidelines being issued by the Central government and would be well within their rights to challenge them before the apex court.