Recently, an article in a leading English national daily made a thesis that the outbreak of Covid-19 pandemic has led to our country being governed in a unitary manner, even though our constitution has laid down a federal structure of the government.

There was a cavil in the article that this unitary functioning required to be looked into and scrutinised by the Hon’ble Apex Court as being violative of our federal character.

It is relevant to point out the Central Government’s directives to all the States and Union Territories emanated under the Epidemic Diseases Act, 1897, a law which was first enacted to tackle bubonic plague in Mumbai (formerly Bombay) in former British India and Disaster Management Act, 2005.
These law are meant for controlling epidemics and national disasters by providing special powers that are required for the implementation of containment measures to prevent the spread of the disease or to manage the situation arising due to any disaster.

The Epidemic Diseases Act, 1897 has been routinely and continuously used to contain various diseases in India such as swine flu, cholera, malaria, and dengue in 2009, 2015 and in 2018.
Starting in March 2020, the Act has been enforced across India in order to prevent the spread of Covid-19 pandemic in India. Similarly, the Disaster Management Act, 2005, has also been used to control all kinds of disasters across the country.

A ‘doubting Thomas’ might question the propriety of invoking these Acts so as to curb freedom of States and UTs in tackling this pandemic and thereby diluting our federal structure. In order to ensure uniformity in the measures to be adopted by various States and UTs, as well as their implementation, the National Disaster Management Authority (NDMA), in the exercise of the powers under section 6(2)(i) of the Disaster Management Act, 2005, issued successive orders directing the Ministries / Departments of Government of India, and the State / Union Territory Governments and State / Union Territory Authorities to take uniform and effective
measures to prevent the spread of COVID-19 in the country.

In compliance with the orders of NDMA, Ministry of Home Affairs (MHA), GoI, also issued orders under Section 10 (2) (l) of the Disaster Management Act, 2005, also reiterated these directives proclaiming lockdown across the country which remained in force throughout the country for definite periods.

The central theme of this article is whether Centre’s enforcing uniform guidelines in the States / UTs in the wake of Covid-19 pandemic is, in any manner, tantamount to the infringing federal structure of our country.

The word ‘federal’ is derived from a Latin word ‘foeder’ meaning a compact or a league. Black’s Law Dictionary defines ‘federal’ as “a system of associated governments into national and regional components having different responsibilities.”
Likewise, a ‘federation’ denotes “a league or union of states….united under a strong central authority but retaining limited regional sovereignty.” (Emphasis added).

In the light of these connotations, an attempt is made to reconnoiter our federal structure. Normally, a federation comes into being with States parting with their sovereignty in favour of a central authority with a mandate that powers given to them shall not be taken away without their concurrence.

Unlike in the US and Australia, States in India did not have their own constitutions. They were governed by the Government of India Act, 1935, which was framed, broadly with a federal structure for the country.
Later, our Constitution was enacted with all the main ingredients of a federation to continue the legacy of the Government of India Act, 1935, keeping in mind the then needs and certain particularities of Indian polity.

Dr. Ambedkar said in his Constituent Assembly speech that “there is nothing to be ashamed of in borrowing. It involves no plagiarism. Nobody holds any patent in the fundamental ideas of a Constitution.”
In the wake of our diversity, plurality, and the historical perspectives and the fact, that there were more than 560 princely states having subsidiary alliance with the British Raj at the time of British withdrawal, the country needed a unifying basic law to bind the whole country into one.

The functioning of various federal systems manifested that there was a need to mitigate the rigidity and legalism of a federal constitution by adopting the modus vivendi of distribution of powers and certain other methods. Dr. Ambedkar said these provisions made the Indian Constitution “both unitary as well as federal according to the requirements of time and circumstances.” Framers of the Constitution incorporated salient features of a federation to make the Indian Constitution federal in form, albeit with certain unitary components, and enshrined special provisions to alleviate the rigidity of federalism.

Importantly, these provisions include, inter alia,

a) single Constitution for the Union and the States (special status of J&K has since been abolished in 2019);

b) Constitution attains unitary character during emergencies under Part XVIII of the Constitution (Articles 352-360);

c) single citizenship (state citizenship for J&K has been abrogated in 2019) for the whole of India;

d) a strong central authority with residuary powers over whole of the country and powers over the States under certain circumstances (Articles 246, 248,  249, 250 252);

e) Central Government can reorganize the boundaries of the States and change their names;

f) single integrated judicial system and appointment of Judges to the Supreme Court and High Courts and inter-state transferability of High Court Judges;

g) civil and criminal laws (though placed in Concurrent List) are codified by the Union Government and are uniformly applicable in the entire country;

h) uniform administrative system (all-India services) without impairing the federal canons;

i) single electoral machinery;

j) financial dependence of States on Union (Articles 268-281), etc.

A Constitution – the Bible of a nation – has to complement the individualities of the sovereign people who bring it into being. Hence, in the then temporal frame, our Constitution devised a new contrivance to meet the special requirements of Indian society.

It is, therefore, incontrovertible that Indian federalism is quite different from other federations in the world. Hon’ble Apex Court has also opined, in a catena of judgments, that ‘federal character of the Constitution’ is a basic element of the Constitution. Indubitably, ours is a ‘federal union’ sui generis.

By: Shrawan Sawhney (IAS Retd.)

The Views expressed by the author are personal.