Ragini Agarwal

This is the second post in the series of three posts on federalism after Covid. Find the first and third posts here and here.

“Everyone wants decentralisation, but only until his level.”

India has been variably qualified as a “quasi-federal”, a “quasi-unitary” structure but then as Justice Pandian said in S.R. Bommai v. Union of India (1994) “what is there in a name” (¶25). It is more important to bear in mind the thrust and implications of constitutional provisions for better cooperation and coordination amongst the states, union territories and the centre, each of which has a separate existence and sphere of power, and yet are largely dependent on each other. This is what Grodzins termed as “marble cake federalism” in 1966. The federal principle[1] in India follows both the cooperative and the competitive model, as is evident from the developmental policies that NITI Aayog framed.

A strong federal structure does not mean one polity becomes more powerful at the expense of the other, rather, it is a “stronger together” model. The COVID-19 pandemic has forced countries across the world to reflect upon its nature of federalism and the manner in which it deals with the crisis, and India is no exception. The country’s leadership has focused on a command and control type of response more than a consultative coordinating response to the pandemic, especially in the initial days. At a later stage of the lockdown, perhaps realising the folly, it attempted ad hoc meetings and consultations with state governments which did help mitigate the issues that had emerged on account of lack of coordination.

The COVID-19 situation brought out the defects in inter-state cooperation evident in largely three categories: (a) movement of people and the migrant labour crisis; (b) sharing of supplies; and (c) sharing of state resources such as health facilities. India has structures such as the Inter-State Council [ISC] (under Art. 263 of the Constitution of India) and Zonal Councils (under the States Reorganisation Act, 1956 and the North Eastern Council Act, 1971) in place. In this part, the author argues that taking the Australian example, had India shored up its regional/zonal cooperation by using the developed structures and systems effectively, the crisis could have been better managed. Moreover, since the WHO has pointed out that the crisis is nowhere close to being over, it is not too late to implement such models. In the long run, even after the crisis is over, such models of inter-governmental cooperation shall come in handy.

Inspiration from Australia

The Australian model for inter-state coordination has had a positive impact on ensuring effective COVID–19 management. In Australia, the National Cabinet consisting of the Premiers, Chief Ministers of the States and the Prime Minister of the nation meet every fortnight via telepresence during the COVID-19 pandemic (and plan to convene monthly in the future) to focus on issues of national priority including control of the spread of the virus as well as discuss measures for job creation in response to the pandemic.

This is a prime example of productive relationships between the states inter se and between the centre and the states. The Cabinet has taken up the primary role of managing the COVID crisis. Such an inter-governmental forum has effectively ensured that there is no information asymmetry between states, the right controls are in place for testing more people and a cohesive strategy for suppression of the virus is implemented. Avoiding delays by regular meetings, technical and political experts coming together to pool ideas also ensures that the risk is managed well. Decision-making is fast-tracked and confusion is avoided while respecting the jurisdiction of each government.

It may be noted that the nature of the Australian and Indian federalism is very different. Some may argue that comparison with the Australian model is not justified. Not only is the origin of the federal principle in both nations is distinctive – one originated as an agreement to transfer power to a central authority (Australia), whereas the other originated by transformation of the unitary state into a federal union (India);[2] but the Australian federalism is characterised by clear-cut division of power between the centre and the states with one commentator going so far as to state that it would seem on a bare reading of the Australian Constitution that the states ran the country. That is not the case with India.

However, despite running on what RN Spann calls “executive federalism”, Australia, in true compatibility with the dynamic nature of federalism, is slowly recognising centralism as an important component. Moreover what makes the comparison justified is that firstly, this feature of inter-governmental meetings originated as a component of “cooperative federalism” in Australia, something that the Indian federalism has always recognised as its feature (See, Austin[3]). Secondly, these models of cooperation between the states and between the states and the centre are not being proposed anew. Rather, they have been in existence since the birth of this nation, even if not used to its utmost potential.

The Promise of Decentralisation: Inter-State Council

When Narendra Modi came into power in 2014, it was with the experience of being a Chief Minister for three terms under his belt and with effusive promises and vision of promoting cooperative federalism. Somewhere along the way perhaps, this vision became a bit lost. When it came to imposing the lockdown, the Prime Minister sprung it as a surprise to most states causing issues in coordination and the migrant labour crisis in which norms of sanitisation were rampantly violated and the police forces used brute force against those wanting to go home. These issues would have been in control from the beginning had the Leadership taken the states into confidence using the forums such as the ISC.

As opposed to NITI Aayog, the ISC is more political in nature with constituent members being Chief Ministers of states and Chief Ministers/Administrators of Union Territories with the Prime Minister as the Chairman. Formed as an advisory and consensus-seeking body under Art. 163 of the Constitution of India on the recommendation of the Sarkaria Commission (1988) (Ch. 9, ¶5), the ISC got formally constituted in 1990. Functionally, it was visualised as having functions separate from a National Development Council which would deal with matters of socio-economic planning (¶9.4.06). The ISC was structured in a manner that eschewed voting by majority and instead focused on arriving at a consensus “in a spirit of mutual accommodation, comity and compromise” (¶9.5.02).

The body was handmade for use in situations such as the COVID wherein an issue of national importance was at play and inter-governmental relations were at stake. The role of the Centre as a facilitator in (i) ensuring that the best practices being followed in states such as Kerala are implemented across other states; (ii) the issues such as transportation of migrant labours are dealt with expediently using coordinated planning and opening up of borders in parts to ensure that safety norms were followed, was sorely missed. It was only after migrants gathered in large numbers at stations/ started walking thousands of kilometres home, that Shramik Special trains were run and those too fell victim to lack of coordinated national planning, visible in instances when the Home Minister accused the West Bengal government of not allowing trains to ferry migrants.

Even with respect to inter-state travel, accusations kept flaring about restrictions regarding entry at the border. For example, in May, the Uttar Pradesh Government stopped buses from Rajasthan and Haryana from entering its borders, Karnataka restricted entry of people from Gujarat, Maharashtra and Tamil Nadu. This resulted in agony to the passengers. The need for a robust and responsive system of co-ordination amongst the states and the role of the Centre in facilitating such co-ordination at the grass-root level cannot be emphasised upon enough. ISC has a huge role to play in such a scenario, yet it has been only sporadically used – since the Modi Government came into being, it has had only three meetings, the last one being in 2018.

Looking at the Bigger Picture: The Zonal Councils

The Sarkaria Commission Report lamented the manner in which Zonal Councils which had initially been formulated with separate Secretariats (§19, States Reorganisation Act, 1956) were gradually centralised in Delhi and made a part of the Ministry of Home Affairs (¶¶9.8.03-04). These Councils have huge potential in resolving disputes with the neighbouring states and were attempted to be reactivated in 2014. However, the attempt has been abysmal with meetings being held at infrequent intervals.

Between 2014-2020, Northern, Central, Eastern, Western and Southern Zonal Councils have averaged at 3-4 meetings each while the Standing Committees of the Zones have had 19 meetings in totality. Not a single meeting of either the Zonal Council or the Standing Committees on Zonal Council has been held since the strike of the pandemic showcasing exactly how the inter-state coordination channels are not used effectively and instead party channels are relied upon to get things done, leading to a structurally unsound and in the long run, ineffective manner of dealing with conflicts that emerge. North Eastern Council, on the other hand, incorporated under a separate statute has proved to be a frontrunner in inter-state cooperation and under collective action taken a number of steps to improve the viability of the region.

Bengal sought help from eighteen Chief Ministers to aid the migrant workers stuck in different parts of the country. In Delhi, there are conflicting orders from the state government, the Ministry of Home Affairs and the Lieutenant Governor, the most prominent one being on the Delhi Government’s decision to use hospitals only for Delhi residents.

These are issues where national interest is at stake and every player has to pull its weight to ensure that we emerge victorious from this conflict. The ISC and Zonal Councils can play key roles in coming to a mutual understanding and implementing coordinated action plans. The Zonal Councils, if used effectively could play a huge role in helping avoid the states take a myopic view of the situation and grow in the region taking into account the needs of their neighbours in a manner that does not compromise on the safety parameters. This can range from coordination on tracking the number of cases to coordinating police action and sharing of resources with regard to health facilities effectively.

The Way Forward

Admittedly, the response to the pandemic by the Central government could have been managed more efficiently had the state machinery also been made a part of the action strategy. In times like these, the executive across the country must come together for a long term coordinated strategy to ensure that the problems such as inter-state travel, sharing of resources is done in a manner that no state is affected adversely. Had there been proper coordination from the beginning, the travel of the migrants could have been done in a spaced manner so that the effects were contained. Proper communication channels would not have led to issues such as stopping of buses at the border.

Now, the problem of rebuilding the nation from the effects of the pandemic still persists. Reinvigorating bodies of cooperation such as the ISC and the Zonal Councils can help in the nation-building activities. The government is still treating the problems on an ad hoc basis – dealing with it as it comes. Planning ahead would mean that the government could foresee potential issues and take timely action to nip problems in the bud. Instead of flipping from one piece of problem to another, an attempt at building cohesive strategies must be there which shall only be possible if systems such as ISC and Zonal Council are utilised.

[1] K. C. Wheare, Federal Government 10 (4^th Ed., 1964): “the method of dividing powers so that the general and regional governments are each, within a sphere, co-ordinate and independent.”

[2] Durga Das Basu, Comparative Federalism 81 (Wadhwa, Nagpur, 2008).

[3] Granville Austin, The Indian Constitution: Cornerstone of a Nation 186 (1996).

Ragini is a 2020 graduate from the National Law University, Jodhpur. She has a keen interest in jurisprudence and constitutional law and hopes to pursue it further through an LLM after some years of field experience in a firm.

Picture Credits: thenews.co.in