Symposium: COVID-19 in India: Seeking Accountability in a Moment of Crisis (II)

Anindita Mukherjee

NALSAR University of Law, Hyderabad

Editors’ note: this is part II of a two-part post on COVID-19 in India. Part I can be found here.

While it is clear that the Indian federation is Union-heavy, the Constitution does build in some mechanisms of accountability, to check the use of executive power. The legislature is expected to interrogate executive decision-making, with sub-committees expressly tasked with examining subordinate legislation. The judiciary, of course, has the power to review executive action. In an emergency, however, these systems of accountability do not necessarily function as expected.

Checks and Balances

The Disaster Management Act of 2005, grants overarching powers to the Executive during a disaster. Since the lockdown, India has been ruled entirely be executive fiat. Legislative assemblies have been adjourned sine die, and nary a legislator is to be seen examining the rules and orders being issued. Legislations are being amended through a slew of ordinances. This level of executive power may arguably be necessary during an emergency, but, as Sekhri points out, given the amorphous nature of this particular crisis, we may well be on our way to normalising the concentration of power in the hands of the Executive.

The powers of the Union under the Disaster Management Act are meant to be used to address the pandemic. In the garb of doing so, the government introduced an app named ‘Aarogya Setu’ riddled with glitches and constructed to permit state surveillance, made it mandatory for train and air travel, and for employers to insist employees download it. It also communalised the pandemic by selectively testing one particular cluster and feeding a ‘corona-jihad’ narrative, leading to numerous acts of discrimination against Muslims, including a call for the boycott of their businesses. The absence of any legislative opposition has permitted the Union government to undertake several dubious projects entirely unrelated to the pandemic. More than 30 development projects in biodiverse forests have been cleared or discussed without any site visits, during the lockdown period. The state has also used this moment to erase protest art from the walls of the national capital, and arrest dozens of political dissidents, including a pregnant woman, who participated in the nationwide protests against the citizenship amendment that it enacted in December 2019. In addition to this inglorious list, the lockdown has directly led to the impoverishment of hundreds of millions of migrant workers and, by Sainath’s estimate, the loss of 122 million jobs. Migrant workers, abandoned by their employers and the state, took to walking thousands of kilometres, down highways and railway, tracks in a bid to get home; over 170 have died due to exhaustion and accidents alone.

By most metrics, all of the decisions described above constitute clear violations of the rights to life, privacy, freedom of speech, adequate shelter, food and livelihood. However, the Supreme Court has dismissed out of hand most petitions relating to the consequences of the crisis, accepting the government’s (often false) submissions uncritically, ceding to the ‘wisdom’ of the government. The traditional check against the excessive use of executive power—judicial review—thus, has largely failed.

Accountability from ‘Below’

Centralization, however, is not a fact, it is a practise. And convenient as it might be to blame successive Union governments for consolidating power, that is only part of the story. The lopsided-ness of Indian federalism is equally a consequence of States’ failure to plan social sector spending effectively, of States ruled by national parties prioritizing party interest over local interests, of State governments behaving just like the Union government when it comes to decentralization within States and the devolution of fiscal powers to local government; most states, for instance, have been ruling by executive fiat too, since the COVID-19 crisis unfolded. It is also a function of what fora activists choose to approach, the level at which political lobbying happens, the tendency of the press to amplify news generated in and around the nation's capital and the fact that the elite legal educational institutions of the country only teach central law and rarely foray into the dynamics amongst central, state and local government.

That said, there are a few pockets of defiance that point in the direction of a different order of constitutional thought and practice; one that envisions decentralization as a means to engage with the everyday state, to imbue constitutional values bottom-up. The state of Kerala, despite facing the same constraints as other states in relation to access to funding, managed to put in place a robust relief package while simultaneously flattening the curve with an incredible 94% recovery rate. Their analysis indicates that the reason for their success is a simple combination of thorough state-level planning and active execution by local government functionaries. While the Supreme Court washed its hands off the problem of migrant workers walking home, High Courts in several states kicked into action, expressing sorrow at the inhumane treatment being meted out, demanding that state governments set up check posts with adequate food, water and rehydration salts, put in place portable toilets at regular intervals along highways, and arranged for trains at the earliest, for those who are willing to enrol and wait. The High Courts, in contrast to the Supreme Court, took arguments relating to freedom of movement, arbitrary state action, denial of the right to life and allied rights seriously, and demanded factual responses from the government. Confronted with the fact that 19 High Courts had begun issuing orders to alleviate the plight of workers across the country and a stinging indictment from senior members of the legal community, the Supreme Court was finally pushed to reverse its stand and take notice of the issue.

Three-time Chief Minister of united Andhra Pradesh, NT Rama Rao is said to have thundered, “the Centre is a myth,” referring to the undeniable fact that people’s engagement happens, in the main, with the State and local level government apparatus. But that does not make the Union a myth. Progressive High Court decisions (such as the orders by the Kerala and Allahabad HCs asking governments to relax time-frames for tax and loan repayments on account of this crisis) go up to the Supreme Court only to be stayed indefinitely. The Union government can take action that undercuts States’ ability to function effectively (like the centralized determination of red/orange/green districts, that failed to account for realities like the size of the district, the extent of spread and the need for a district-wide lockdown). States that fail to toe the Union line can face censure, ‘punishment’ in the form of delayed release of funds or the refusal to extend aid during crises like floods or cyclone damage, and even the imposition of President’s Rule. Which is to say, when accountability mechanisms at the Union level fail, resistance is possible at the State level, but not without very real adverse consequences.

Given this reality, I have really struggled with trying to understand what the purpose of making constitutional arguments is, in a might-is-right sort of political environment. The situation is heart-breakingly bleak, and conversations about rights in the face of naked, unaddressed grief and loss at this scale, can start to feel futile, even self-indulgent. The fact is, the creation of an accountable, decentralized government is not possible through the usual constitutional remedies, as things stand. Neither courts, nor an election, not even a range of constitutional amendments can fix this situation entirely. We are faced up with a constitutional crisis without the vocabulary required to make sense of it as a constitutional crisis. This is perhaps because we have, for too long, attempted to divorce constitutional questions from political and economic ones; colonial legal histories, public finance, constitutional law, electoral politics are all studied as distinct subjects. The COVID-19 crisis has exposed the silos in which we view the world—law, politics, economy, science, art—for what they are, an elaborate farce. Any real change in the Indian system of government will require massive political mobilization, protest, cultural shifts, the creation of electoral alternatives; it will require fact-checkers, whistle-blowers, conscientious state functionaries, artists, law people, environmentalists: a plethora of insights and interests, hopefully united in a constitutional vision of dignity and equality. May we hold hands in the post-COVID world.

Anindita Mukherjee is Doctoral Fellow at NALSAR University of Law, Hyderabad and the author of The Legal Right to Housing in India (New Delhi: Cambridge University Press, 2019).

Suggested Citation: Anindita Mukherjee ‘COVID-19 in India: Seeking Accountability in a Moment of Crisis’ IACL-AIDC Blog (4 June 2020) https://blog-iacl-aidc.org/social-rights/2020/6/4/covid-19-in-india-seeking-accountability-in-a-moment-of-crisis