COVID-19 and Democratic Deliberation in India

Anmol Jain & Prannv Dhawan

National Law University, Jodhpur & National Law School of India University

In an attempt to break the chain of transmission, the union government’s Home Ministry has extended the nationwide lockdown for another two weeks, on May 4th in India. This was the second extension of the lockdown first imposed on March 24th. In this post, we attempt to demystify certain steps taken by the union and state governments and argue that the centralized management of the crisis highlights that the pandemic has acted as a catalyst to India’s growing authoritarian instincts. We focus here on ‘deliberative democracy’. This concept builds upon the idea of ensuring ‘participation’ of various actors in decision making and has been recognized by the Supreme Court as an essential feature of the Indian Constitution.

Looking at deliberative democracy at this time is important because Parliament was prorogued prematurely due to COVID-19, the state assemblies are not sitting, and Prime Minister Modi does not attend any press conferences. Unlike other countries like New Zealand, the United States and Singapore, the Indian response to the pandemic is largely being managed through executive decrees issued by the union government under the Disaster Management Act, 2005 and the state governments under the Epidemic Act, 1897. The powers under these two statutes are widely worded and effectively provide the Union Government with executive carte blanche. For instance, Section 2 of the Epidemic Act empowers the state governments to take any special measures and issue temporary regulations which it deems fit ‘to prevent the outbreak of such disease or the spread thereof, and may determine in what manner and by whom any expenses incurred (including compensation if any) shall be defrayed’.

Exclusion of the state governments from the decision-making process

India is a federal republic, with Schedule VII to the Constitution demarcating the different powers of the union and state governments. Under this schema, public health is an issue that falls under the states’ legislative domain (see entry 6, schedule VII). Additionally, ‘co-operative federalism’ is an established principle of Indian constitutionalism. This principle places a duty on the union and state governments to work together in ‘harmonious co-existence and interdependence’. However, disregarding the constitutional schema and the principle of co-operative federalism, the union government imposed a nationwide lockdown on March 24th. In doing so, it utilized questionable powers under the Disaster Management Act, 2005 and acted without even taking into confidence the Chief Ministers of the states. 

The issue around a lack of constitutional power to even have enacted the Disaster Management Act as union legislation has been discussed elsewhere. We want to argue, however, that even under the current governance system (in terms of which the state governments regulate the police and hospitals), it becomes imperative that states take the lead in handling the outbreak. The union government ought to support the states in the background, instead of the other way round. There is a leading role for the union government, but that is in the resolution of inter-state disputes, the coordination of global communication related to fighting the pandemic and in ensuring that the states have adequate financial and medical resources like test-kits. Multiple state Chief Ministers have requested assistance in the form of an adequate financial package from the union government.    

In this regard, we briefly analyze what has been happening in terms of financial assistance provided to the states. Most of the states were struggling before the pandemic to balance their budgets, and COVID-19 has only furthered this problem. Many state governments have even started to withhold employees’ salaries to make ends meet. Despite these difficult circumstances, the union government has taken steps that effectively redirect funding away from the states. The Ministry of Corporate Affairs has announced that corporate financial contribution to state-controlled relief funds (like the Chief Minister Relief Fund and the State Relief Fund for COVID-19) will not count as an act in furtherance of Corporate Social Responsibility requirements. In contrast, all contributions made to the ‘PM CARES’ Fund – a fund created by the union government to deal with COVID-19 – will count towards these requirements. Clearly, the purpose of this announcement is to ensure financial assistance is diverted from the union government and away from the states.

Further, money previously allotted to states under the Members of Parliament Local Area Development Scheme (MPLADS) has been appropriate by the union government. In this regard, Manish Tiwari has pointed out that MPLADS is an ‘effective scalpel of targeted micro-level intervention’ and that ‘discretionary interventions’ as a result of the scheme ‘will help saves lives’. This redirection by the union government of the funding for such localized discretionary intervention, at such a crucial time, is very problematic. The current situation is testing Indian federalism. It is time for mature statesmanship to prevail – officials across party lines and at all levels of government must work together as equal partners. Any friction owing to power usurpation will only worsen the crisis.

Taking citizens by surprise

The Supreme Court of India once noted that ‘the main purpose of a representative government is to represent the public will, perception and the popular sentiment into [sic] policies.’ The actions, taken by the union government in response to COVID-19, fall far short of this ideal.

On March 24th, the Indian Prime Minister addressed the nation at 20:00 hours, informing the citizenry about the lockdown coming into effect at the stroke of the midnight. Indian citizens and residents, therefore, had only 4 hours notice to prepare for the lockdown. Interestingly, Parliament was in session when the planning regarding the lockdown was taking place. Despite this, the executive opted to bypass the representative institution and to impose the lockdown on very short notice.

Migrant workers, daily wage earners with meagre savings, have carried the brunt of the burden created by this surprise move. These people were ill-informed about what was going on and had no access to transportation to travel back home. As a result, many migrant workers had to walk home on-foot  – some for hundreds of kilometres. In addition to the resulting loss of lives, the sheer number of people caught far from home meant that the government failed to create the desired lockdown conditions. There have also been many reports of objectionable and unconstitutional police action taken against the migrants.

Concluding Remarks

That the COVID-19 pandemic presents an unprecedented and polycentric governance problem that has and will continue to transform our understanding of the state fundamentally is a foregone conclusion. However, during such transformation, it is imperative that India not undermine her foundational values – particularly those of popular sovereignty and the democratic exercise of state power. The handling of the crisis generally, and the lockdown specifically, betrays increasingly authoritarian inclinations in Indian national government. This state of affairs threatens to undercut the fundamental rights of citizens without adhering to any limits of constitutional proportionality. Remarking on the autocratic nature of the nationwide lockdown and pandemic management in India, eminent public intellectuals have emphasized the importance of the state ‘listening’ to the citizenry to ensure it responds to this crisis in a truly democratic manner. The union government, as well as all the other constitutional functionaries, should look to the remarkable success of the South Korean government in tackling the crisis without imposing stringent restrictions. As a thriving South Asian democracy, India must put public trust, transparency and democratic values at the core of its COVID-19 response strategy.

The lack of cooperation and coordination, by the union government with the state governments, is a violation of fundamental rights provisions. Further, the persecution of independent media professionals shows that the union government’s response to the pandemic is a convenient excuse for it to continue to turn India into an autocracy. It is time for the Indian government to start honoring the constitutional requirements of co-operative governance, participatory governance and critical engagement. The union government needs to ensure it partners with state and local self-governments, the political opposition, the media and the citizenry.  

Anmol Jain is a student at National Law University, Jodhpur. Prannv Dhawan is a student at National Law School of India University, Bangalore where he leads the university’s National Constitution Society Chapter.

Suggested citation: Anmol Jain & Prannv Dhawan, “COVID-19 and Democratic Deliberation in India” IACL-AIDC Blog (21 May 2020)https://blog-iacl-aidc.org/2020-posts/2020/5/21/covid-19-and-democratic-deliberation-in-india