The manner in which the states have responded to the pandemic has forced one to ask whether health should be placed on the Concurrent List.
India’s federalism gives legislative powers to the Union as also to the States. In some cases, the powers are jointly shared and are placed in the concurrent list. Subjects on the Union List, State List and in the Concurrent List are laid down in the Seventh Schedule of the Constitution (List I, List II and List III respectively). List II (State List: 6), lays down public health and sanitation, hospitals and dispensaries, as coming under the ambit of the state governments.
The SARS CoV-2 virus, which originated in China in 2019 and spread across the world to cause the Covid-19 pandemic is now taking a devastating toll on India, in its second wave, despite the fact that the first wave was handled with dexterity by the Centre. During the first wave of the pandemic in 2020, criticism was levelled against the Centre by certain groups of usurping the power of the states in dealing with the pandemic. In the second wave, where the states have been left free to control the pandemic in their respective states, there have been glaring shortcomings which have led to the pandemic assuming far greater destructive potential than the first wave. Over the last one year, the states have not ramped up their health infrastructure in a manner so as to be better prepared to deal with the second wave.
Before we get down to the Constitutional aspects of the subject, it is worth pondering over the fact that the second wave was not a Black Swan event, but rather a Grey Rhino. So, why were both the Centre and the States caught by surprise? The situation on 1 March 2021 presented a rosy picture, with the number of Covid-19 cases in India having decreased to the lowest level. It was perhaps assumed that this trend would continue. However, from the very next day itself, we saw a small surge in cases. A one-day’s surge obviously is not something that excites suspicion, but when the trend did not reverse for a week, the bureaucrats responsible to monitor the Covid impact should have raised the red flag. The evidence of what could happen was available and should have been foreseen by the secretaries working in the health department in the States and in the Centre and they should have advised their ministers accordingly.
But even if the red flag was not raised, should not each state government have anticipated the coming of the second wave of the pandemic, as experienced by the US and some European countries, and taken measures to ramp up their medical facilities? That oxygen is in short supply now, is largely due to the fact that the state governments did not equip their hospitals with Medical Oxygen Plants (MOP), a common feature in most hospitals across the world, which obviates the need for using cylinders in such hospitals, which have to be filled by outside agencies. No effort was also made to ramp up facilities, or prepare for such a contingency. With health being a state subject, this was clearly something which each state government should have done on its own. Now, with the devastation caused by the second wave, the blame game has started and the onus is being put at the doors of the Centre.
As mentioned earlier, there was certainly a failure in the nation’s bureaucracy, both in the Centre and in the States for not raising the red flag in time. But the manner in which the states have responded to the pandemic has forced one to ask whether health should be placed on the Concurrent List.
The distribution of powers between the Centre and the States, are spread out over Articles 245 to 254. Article 245 sets out the extent of laws which can be made by Parliament and the State Legislatures. Article 246 (3) specifically lays down the exclusive powers of the State to legislate on any of the matters enumerated in List II in the Seventh Schedule. So obviously, if a state’s health infrastructure is to be ramped up, legislation to that effect can only be made by the respective state government. Any encroachment by the Centre on the turf of the States would be viewed by the latter as infringing on the federal structure of the Constitution.
The distribution of legislative powers under the Indian Constitution are based on the Government of India Act, 1935. Here, the Joint Committee on Indian Constitutional Reforms (1934) stated as under: “Experience has shown, both in India and elsewhere, that there are certain matters which cannot be allocated to exclusively, either to a Central or to a Provincial legislature and for which, though it is often desirable that Provincial legislation should make provision, it is equally necessary that the Central legislature should also have a legislative jurisdiction to enable it, in some cases to secure uniformity in the main principles of law throughout the country, in others, to guide and encourage provincial effort and in others again, to provide remedies for mischief arising in the provincial sphere, but extending or liable to extend beyond the boundaries of a single Province”.
The time has perhaps come to seriously consider making an amendment to the Constitution, wherein Health can be placed on the Concurrent List. It will introduce an element of uniformity across all states, on the requirement for health care facilities for the subject population living in different areas, based on population densities, geographical spread of the area and other factors. Within the states, the time has come to keep health as a separate subject, outside the ambit of the Deputy Commissioners of each district, and exclusively in the hands of medical professionals, who will be answerable directly to the Health Minister. While we will weather the present storm, albeit at great human and financial cost, we should be better prepared to deal with such situations in future.
Dhruv C. Katoch is a retired Major General of the Indian Army.