COVID-19 outbreak refocuses need to shift public health from State to Concurrent List; move won't harm decentralisation but enhance Centre, state coordination

The COVID-19 pandemic has exposed the shortcomings which plague the public health system in India. The Central government with the aid of the Epidemic Diseases Act, 1897, an archaic, colonial legislation, and the National Disaster Management Act, 2005, a legislation which has given the executive a carte blanche, has been imposing a uniform set of directions across the country to battle the pandemic, while some states have been issuing directions contrary to those recommended by the Centre.

The pandemic has unveiled and exacerbated the friction between the Centre and the states. This can be evinced from the Centre sending inspection teams to states without the concurrence of their respective governments, the state-Centre debate on the identification of hotspots, and the demand made by states for receiving funds, personal protective equipment kits and testing equipment from the Centre to tide them out of this distress.

To successfully clobber a pandemic in any democracy, the cooperation between the Centre and the states is a sine qua non, and the absence of this in India currently indicates broad fault lines in the constitutional framework, specifically in the domain of public health.

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Structured governance and a sizable allocation of budgetary resources for public health are apparent fixes to the health crisis that is unfolding before us. However, despite this relatively simple solution, India is struggling in its governance of public health, primarily because of the lack of cooperative federalism between the Centre and states, and the limited mandate carved out in the Constitution for the Centre to constructively participate in the governance of public health.

Constitutional competence vs. fiscal and institutional strength

Public health and allied subjects, such as sanitation, hospitals and dispensaries, are the exclusive responsibilities of state governments under the Seventh Schedule of the Indian Constitution whereas the prevention of the spread of infectious or contagious diseases from one state to another falls under the Concurrent List of the Constitution, making it the shared responsibility of the Centre and the states.

This demarcation has limited the constitutional role of the Centre in the governance of public health and made states primarily responsible. Whereas in practice, due to the fiscal and institutional constraints experienced by states, the Centre has consistently played an active role in shaping public health policies. This has led to an absurd situation where the identification of who is truly responsible for the governance of public health has become difficult.

India’s fiscal expenditure on public health has been caught in the tangled mess of the current constitutional framework, with the Centre spending only about 3.6 percent of its GDP in the past year on health, leaving India to rank an abysmal 176 out of 191 countries in health expenditure.

The Central government has attributed this to its lack of constitutional mandate and to the fact that states are the primary custodians of public health under the Constitution. Despite its limited spending on public health, the Centre’s contribution to the states continues to outstrip each state's individual allocation of budgetary resources to public health.

The Central government is also technically better equipped to come up with such schemes because it has the assistance of multiple research bodies and departments dedicated to the management of public health. States on the other hand do not have the technical expertise to independently design comprehensive public health policies.

Basis its expenditure and expertise, the Central government has prepared several schemes on health issues such as tuberculosis, polio and HIV-AIDS and directed state governments to comply with their instructions in enforcing the schemes, thereby determining the last mile usage of the funds devolved.

Therefore, the Centre has assumed a more active role in determining public health policies despite a lack of defined constitutional obligation. By limiting public health exclusively to the domain of states, the Constitution ignores this reality. The state is reduced to a toothless tiger. Although it is exclusively given the responsibility of public health, it is not adequately provided with the fiscal power or the institutional support to effectively make or implement policies.

It may, therefore, be time to re-think the distribution of constitutional power with respect to public health and adopt an approach whereby the states and the Centre can work cooperatively.

Constituent Assembly on public health

The intention behind the Constituent Assembly placing public health under the State List is evident from the Constituent Assembly debates, with members in favour primarily desiring decentralisation. However, during the debates, various members raised concerns of placing it exclusively under the State List citing reasons such as the limited finances of states and the difficulty for the Centre to coordinate national health programmes.

Contributions of Frank Anthony and HV Kamath, who sought to move public health from the State List to the Concurrent List, are noteworthy in this regard.

Anthony, a nominated Anglo-Indian member felt that in three particular matters, police administration, education and health, a recognised degree of Central control was crucial along with that of the states. Kamath, known for his vocal opposition against granting the army extraordinary powers under the Armed Forces Special Powers Act, stated that ‘health schemes that are launched by provincial Governments while commendable as regards their good intentions- fail to achieve the desired consummation, because of the lack of direction and coordination from the Centre’.

He also reminded the Constituent Assembly of how the health minister during India’s first budget session had pleaded for more powers for the Centre to coordinate and initiate various health schemes in the provinces so that national health standards can be raised effectively.

This discussion in the Constituent Assembly is especially relevant during the time of the COVID-19 pandemic. The Central government's ability to use its fiscal power to usurp constitutional powers of the states, even if it is well-intentioned, is likely to cause a breakdown in the Centre-State relationship.

It is not a distant impossibility to see state governments in the future cite the lack of a constitutional basis to refuse to implement Central public health schemes, to retain autonomy in public health governance. On a subject as crucial as public health, it is imperative for states and the Centre to cooperate and have specific responsibilities earmarked.

Towards cooperative federalism

A high-level committee on health constituted to advise the 15^th Finance Commission strongly suggested a shift of public health from the State List to the Concurrent List to balance the power play between the Centre and the states in such a manner that the states commit to the Central government’s goals and also preserve their autonomy to design the implementation of public health policies within their respective borders.

Currently, various health-related subjects such as food adulteration, drugs and poisons, population control, family planning and medical profession reside in the Concurrent List, allowing the Centre to determine national standards and governance frameworks while ensuring that states oversee implementation of the policies regarding these subjects.

The Supreme Court in the case of Security Association of India vs. Union of India in 2014 held that constitutional doctrines must be designed to reconcile the legitimate diversity of regional experimentation with the need for national unity, and if such appropriate balance is struck, it would be in pursuance of cooperative federalism.

To enable a welfare-oriented governance framework in line with cooperative federalism, legislative subjects, especially welfare subjects, require both national and state vision.

One such experiment of balancing national and regional goals was undertaken in the 42nd Amendment to the Constitution which enabled a shift of ‘education’ from the State List to the Concurrent List. While former prime minister Indira Gandhi’s objective behind this amendment may be questionable, some scholars note that the shift of education to the Concurrent List has improved the state of education by recognising a defined role for the Central government and mandating it to cooperatively work with states.

This approach is not uncommon, with other commonwealth countries such as Australia and Canada, allowing for shared responsibility between Centre and state governments on public health. Specifically, in the case of Schneider vs. the Queen, the Supreme Court of Canada in 1982 held that health as a subject should not be subject to specific constitutional assignments but should be addressed by both federal and provincial legislatures according to the nature and scope of the health problem.

COVID-19 has shown us how the current constitutional framework impedes cooperative federalism on the subject of public health. Shifting public health from the State List to the Concurrent List would not be antithetical to the concept of decentralisation as it would provide states with a better bargaining power for finances for public health from the Centre, and would empower them to hold the Centre responsible for improper disbursement of resources.

It would also enable states to design localised public health responses while complying with national goals. Though the process of re-shaping the constitutional structure for public health is fraught with political and social challenges, the COVID-19 outbreak has made us realise that it is time we begin discussing it.

Stuti Shah and Shashank Atreya are both advocates practising in Karnataka.