Public Health: The Need to Shift from State to Concurrent List

As India is going through lockdown 3.0, the discipline demonstrated by the “Janta” during this period is commendable. It is conveying a beautiful message that citizen-government cooperation can be very effective in controlling the menace of the coronavirus. Wearing masks in public, washing hands regularly, using sanitizers and maintaining social distancing has become an important aspect in the life of social animals like Humans in order to stop the spread of the virus.

As the country completed a long 50 days in lockdown, the picture emerging from the pandemic regarding “Public Health” makes it imperative for us to glance through the Constitution of India and understand the responsibility of the government at various levels to provide health care.

The Constitution of India, 1950 lays down the Directive Principle of State Policy (DPSP) for better functioning of the nation. Though these directive principles are not legally enforceable, they, however, act as a guide for the effective functioning of the state. The express mention regarding public health is made in Article 47[1], which directs the state to raise the level of nutrition and standard of living while also improving public health. The Right to Health is now also considered an integral part of fundamental rights. The Supreme Court has held that the Right to live with Human Dignity, enshrined in Article 21[2], is derived from the DPSP and therefore includes the Right to Protection of Health.[3]

The Constitution of India divides the legislative powers between the Centre and State in the Seventh Schedule. Services related to public health, sanitation, hospitals, and dispensaries are placed under Entry 6 of the State List. The idea to entrust the State with this responsibility was based on the rationale that each state has unique health requirements. In order to serve their people more efficiently, the states were given a free hand in health-related issues to devise their own plans. 

But COVID-19 has presented before us a different kind of scenario where it challenges the very idea of placing public health in the state list. The virus that has been classified as a pandemic is affecting millions and has resulted in the death of over 2,000 on total across various states on India. The Ministry of Health and Family Welfare (MoHFW) is playing a central role from providing the guidelines to the various state health ministry on how to tackle the pandemic to even sending central teams to the states where the casualty rate is high like West Bengal, Gujarat, and Maharashtra.[4] The centre has also imposed legislation such as the Disaster Management Act, 2005, and Epidemic Disease Act, 1897 to control the spread of India’s first biological disaster. Any robust response in tackling COVID-19 requires the union of government machinery thus making the Central Government’s role crucial.

The Constitutional design on public health identifies the responsibility in two layers of the government. For instance, there is a shared responsibility on the matters of adulteration of foodstuff and other goods (Entry 18 in List III); drugs (Entry 19 in List III); medical professions (Entry 26 in List III); and contagious diseases (Entry 29 in List III).[5] But in times like these, it becomes imperative for the state to look upon the Centre for direct intervention and mobilization of resources and making efficient strategies for routing them where they are needed most.

The issue to make public health a matter of concurrent list was also put forward in Constitutional Assembly debates by HV Kamath where he stressed on the need to put “public health and sanitation; hospitals and sanitation in List III, because the prevailing standards of health of the nation were deplorable. Hence, according to it, a top priority would raise India its full stature.”[6] Unfortunately, these insights were rejected by the Assembly, and the responsibility was finally entrusted to the states. 

The High-Level Group (HLG) which was formed for the health sector by the 15th Finance Commission recommended transferring the subject ‘health’ to the Concurrent List of the Indian Constitution from the State List.[7] “Right to health should be declared a fundamental right on the occasion of the 75th Independence Day in 2020”[8]

COVID-19 has, at last, brought our attention to the long-pending health care reforms. The working of the Union, State, and Local Governments along with the frontline workers, ASHA, ANMs, and Anganwadi workers shows that Health Management Information System (HMIS) is becoming sturdy in providing real-time administrative data of physical and financial progress at this critical juncture.[9] Inclusion of public health and allied services with Entry 25 of List III and Entry 26 of List III makes it critical in these situations. The responsibility should be held by both the States and the Centre for building a robust health care infrastructure in the country. 

Prime Minister Narendra Modi’s call for “Sabka Sath Sabka Vishwas” today stands the real test of time, where the Centre will coordinate and lead on the combined advice rendered by the States. The successful manoeuvring will go a long way in realigning subjects like public health and hospitals; consolidate the states’ support; and strengthen the planning and implementation part.

As Winston Churchill once said during WWII, “never waste a good crisis”. This pandemic is challenging us as a nation to take up upon and bring the necessary reforms required to restructure the economy, health sector, etc. India would have a solid health infrastructure and pandemic preparedness post the crisis and eventually play a great role in building ‘New India’.   

[1] Article 47 in The Constitution Of India 1949, , https://indiankanoon.org/doc/1551554/ (last visited May 13, 2020).

[2] Article 21 in The Constitution Of India 1949, , https://indiankanoon.org/doc/1199182/ (last visited May 13, 2020).

[3] Bandhua Mukti Morcha vs Union of India & Others, 1984 AIR 802

[4] Central govt teams rushed to 10 states with high Covid-19 caseload – india news – Hindustan Times, , https://www.hindustantimes.com/india-news/central-govt-teams-rushed-to-10-states-with-high-caseload/story-oxq9H6ywQy0vYUTGT34tRO.html (last visited May 13, 2020).

[5] New India? A case for urgent transfer of public health from state to concurrent list, , https://www.counterview.net/2020/04/new-india-case-for-urgent-transfer-of.html (last visited May 13, 2020).

[6] Constituent Assembly Debates On 2 September, 1949 Part Ii, , https://indiankanoon.org/doc/1114455/ (last visited May 13, 2020).

[7] Shift health to concurrent list: Expert group to Finance Commission, , https://www.downtoearth.org.in/news/health/shift-health-to-concurrent-list-expert-group-to-finance-commission-68926 (last visited May 13, 2020).

[8] ibid

[9] New India? A case for urgent transfer of public health from state to concurrent list, supra note 5.

Utsav Sharma from IIT Kharagpur

 “An engineer turned Lawyer who loves to be perfect in everything. Currently working on Indic Renaissance

Editor: SanskritI Sood

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