A case for rebalancing

Rushing seven visiting Central team to criss-cross the whole of West Bengal is exceptional when such teams are hardly sent to India's many other more severely COVID affected states. Is it scientific investigation or sheer political arm-twisting before the assembly election? For 423 cases in West Bengal, seven Central teams were sent; while for 2,550 cases in Gujarat, only two Central teams have been sent. Uttar Pradesh with 1,505 active cases and Karnataka with 501 total cases have still not been subjected to visit by any Central team.

The bone of contention over death rates in Coronavirus cases in West Bengal is like a fig. Bengal's early kick-off in the battle against COVID-19 won many accolades for its Chief Minister's initiatives to accord maximum possible help to the distressed and also to secure frontline warriors. To dent Mamata's success story, camouflaged IT cells fanned fake stories of lockdown violation in minority-dominated areas, suppression of Coronavirus deaths, low testing levels and lack of proper provision of PPEs to doctors. These stories created a sense of false alarm. The fact remains that Kolkata reportedly stood out far better than many other Indian cities like Hyderabad and Chennai in terms of awareness about norms of lockdown and social distancing, per the latest survey by a national research firm called TRA.

Given this, reasons for sending seven experts teams for an on the spot verification under section 35 of Disaster Management Act, 2005 (DMA) is far beyond the supposed role of co-ordination with the state government. Though DMA envisages equal and co-operative roles for both Central and state agencies, the visit of expert teams in Bengal gives an impression that the state-based fight against COVID must satisfy a top-down hierarchical command structure. Such subordination is unwarranted under Constitutional provisions. Indeed Article 37 of the Constitution lays out the fundamental principle of governance of the country that desists from any top-down executive action and speaks of the primary role of the state in an equable federal spirit to promote the welfare of the people. The visiting team, in this sense, cannot cause an overreach beyond the state's roles under DMA itself. DMA allows the state a greater role at the grassroots level that enjoys immunity from being questioned by the Centre from the top.

Under DMA, the national executive committee and the state executive committee are equal partners and the former cannot exercise any special powers on the state government even by way of raising questions about the efficacy of any state government led mitigation of COVID-19.

So the question of the Centre taking all necessary measures and issuing directions to states under DMA cannot be a top-down exercise, but it must be arrived at by way of close collaboration and co-ordination with governance institutions of the state. This is what 'Laxman Rekha' drawn in the seventh schedule of the Constitution also warrants, as public health is strictly in the state list on which Centre can have legislative powers but no executive power. Any assumption of executive power of the Centre has to follow checks and balances. Central directives issued under section 62 of DMA to which states have to 'comply' are not under any non-obstante clause. Compliance does not mean that the Centre has a higher authority of supervision and calling out the state. Coordination and monitoring power vested on National Executive Committee under Section 10(2) (a) does not envisage any role beyond coordination, monitoring and cooperation with a state government. Rather, the checks and balances to any assumed peremptory powers of the Centre are clearly stated in Section 35(2) (e) of DMA that vests the task of cooperation and assistance towards state governments upon the shoulders of the Central Government. Further, the Constitution of India does not provide for a supremacy clause of executive power to the Centre, expressions like 'bound to comply' only states 'normative' inviolability of a directive in a disaster situation. But a public health disaster is a two-tier legal structure: the general sense of 'disaster' is the domain of the Centre, while its particular area of application such as 'public health' and its area of operation is under the executive jurisdiction of the state government. The Centre can issue statutory directives but its translation on the ground is left to the state. Under 6(2)(f) of DMA, the Centre can coordinate, enforce and implement policy and plan for disaster management which does not apply to a specific area and specific way of implementation, which ultimately falls within a state. In other words, the legal and constitutional framework of disaster management does not permit a nonstatutory overreach of the Centre over the state. A public health disaster like COVID remains federal in structure and cannot be ruled over by the Centre in a territory falling within a state.

A democratic, decentralised and federal bottom-up response seen as non-conformism gets a stick. Does DMA demand that states like Kerala and Bengal follow a script written by the Centre by giving up their ingenuity? Should a pandemic be the right time to make an opposition party fall in line? Who decides who faltered, the state or the Centre in a democratic context? Is it power play or is it constitutional morality that decides, especially in a crisis?

This brings us to two of the major concerns that arose in the context of the visiting team. One, the alleged lockdown violation and second, the underreporting of deaths. Targeting minority-dominated areas for lockdown violation is sheer politics, to which only the state of Bengal can initiate the due process and not the Centre. Recording COVID related death by an expert committee constituted by the state under DMA has followed WHO/ICMR guided distinction between 'immediate cause' and 'underlying cause'. Unreasonable suspicion is raised on Bengal's categorisation of co-morbidity to question its low rate of death owing to COVID. Similarly, Bengal's initiatives for testing following ICMR guidelines cannot be used to correlate underreporting of cases and deaths, as that would be an overreach.

Centre's supply of faulty kits, Centre's non-release of finance commission mandated full grants and little support to the disaster fund, while total control over the purchase of PPEs does not conform to the spirit of DMA. Non-allotment of Bengal's quota of PDS supply in a pandemic is another glitch. All these, put simply, heighten the need for better federal management to which both the state and the Centre must remain responsive.

The writer is a philosopher and a political analyst. Views expressed are strictly personal