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New India? A case for urgent transfer of public health from state to concurrent list

By Uday Shankar, Simi Mehta, Shubham Pandey*
The success of janata (public) curfew and the discipline demonstrated by the citizens of India during the nationwide lockdown has conveyed the message of citizen-government cooperation in the effort to contain the menace of coronavirus.
Maintaining social distancing and the need to stay at home during the prevailing health crisis is expected from the people to contain the spread of the virus. The state has rolled up its sleeves to provide rapid medical support with the support of all union and state departments.
At a time when the human civilization is confronted with the most severe challenge from a single strand virus, it becomes imperative to glance at the Constitution to understand the responsibility of the government to provide health care. The Constitution of India distributes the legislative powers between the centre and the states under the Seventh Schedule.
Services related to public health, sanitation, hospitals and dispensaries are categorised under Entry 6 of List II, and is the responsibility of the states. The rationale to entrust the responsibility of public health and sanitation to the states is because the health requirements vary from one state to another. Considering the specific health care issues, the state government devise their own plans to deliver these services to the people efficiently.
However, when it comes to pandemics like SARS, MERS, HINI (swine flu) and more recently the coronavirus disease (COVID-19), the same rationale does not hold the ground and poses an obstacle in formulating and efficient response to such diseases. A characteristic of these pandemics is that it is spread globally by affecting millions of people.
Any robust response in tackling pandemics like the COVID-19 requires synergy of government machinery, wherein the role of the Union government becomes extremely important.
The Constitutional design on public health identifies the responsibility amongst two layers of the government. For instance, there is a shared responsibility on the matters of adulteration of food stuffs and other goods (Entry 18 in List III), drugs (Entry 19 in List III), medical professions (Entry 26 in List III), contagious diseases (Entry 29 in List III).
Moreover, the allocation of public goods cannot be effectively decided by the central government. It would be imprudent and impractical to provide a single government to decide on the entitlement on the goods of citizens.
But when it comes to making effective response strategy for tackling pandemics that affect the health of the population around the country, it becomes imperative for the Union to spearhead the nationwide planning in consort with the state governments.
In fact, given their inherent challenges, it becomes implicit for the states to look up to the Union government for a direct intervention to mobilise their medical resources and devise efficient strategies for routing the resources where it is most needed.
The annual comprehensive state health index, or the 'Healthy States, Progressive India- Report on the Ranks of States and Union Territories', is spearheaded by the NITI Aayog. It is tool to measure and compare the overall performance and incremental performance across States and UTs over time.
The Health Index ranks them based on the scores obtained for 23 indicators grouped into the domains of health outcomes, governance and information, and key inputs/processes. Since 2017 when it was first released, it has become an important instrument in understanding the variations and complexity of the nation’s performance in health.

Constituent Assembly debate

The need for state-of-the-art health care facilities and the readiness of the states on their toes to respond to pandemics provides compelling reasons to revisit the farsightedness displayed by the founders of the Constitution during the Constituent Assembly debates.
For instance, HV Kamath stressed the need to ‘public health and sanitation; hospitals and sanitation in List III, because the prevailing standards of health of the nation was deplorable. Hence, according it a top priority would raise India its full stature.
Speaking with his prior experience of certain provinces, he mentioned that well-intentioned health schemes launched by provincial governments often fail because of the lack of direction and co-ordination from the Centre.
Providing a picture of the depleted, inefficient and inept public health situation, Brajeshwar Prasad in the Assembly strongly advocated for placing the subject exclusively in the domain of the central government, i.e., under List 1 or in the Union List. Only this would save the nation from the scourge of disease and epidemics.
Right to Health should be declared a fundamental right on the occasion of the 75th Independence Day in 2022
Unfortunately, such far-reaching insights were disapproved by the Assembly, which ultimately entrusted the responsibility upon the states to create the robust health infrastructure, so that the country will effectively deal with pandemic in future. Sadly, the current epidemic has exposed the reality of preparedness of many states.
The Health Index 2019 ranked Kerala first in terms of overall health care performance in the country. Not without reason, though it was among the worst hit states due to the coronavirus, it ably handled the situation. However, the number of infections and deaths is steadily rising in other states, and population is witnessing increasing panic and catastrophe.
This is being exacerbated by the poor health infrastructure and amenities around the country. Thus, these formidable challenges, arising out of the threat of the novel coronavirus, call for urgent need to revitalize health care. It reminds the obligations of the elected governments at the Union and State levels towards public health care systems.
In this situation, inclusion of public health and allied services, at par with medical education and family planning, as an Entry in List III for fighting with Pandemic diseases, and making it a concurrent responsibility of both Union and the states will help in building robust pandemic disease management infrastructure in India. It would help bring medical support from advanced nations and states to those states that lack in health care and support system.
In fact, the high-level group (HLG) formed for the health sector by the 15th Finance Commission recommended the transfer of ‘health’ from the State List to the Concurrent List and that ‘Right to Health’ should be declared a fundamental right on the occasion of the 75th Independence Day in 2022.
However, given the coronavirus crisis in the country, it is pertinent for the government to have an immediate Executive Order and later enact a legislation to bring the subject of ‘dealing with pandemics like COVID-19’ into List III (Concurrent List) of the Constitution.
As is being observed, the Ministry of Health and Family Welfare (MoHFW) would play a key role in guiding the comprehensive public health system of the country. In fact, the COVID-19 has brought to the fore importance of health care reforms, which has long been pending.
Perhaps the silver lining in the coronavirus crisis has brought attention to the long pending health care reforms. The working of the Union, state and local governments in tandem with all frontline workers, ASHA, ANMs and Anganwadi Workers is showing that the Health Management Information System (HMIS) is steadily becoming sturdy in providing real-time administrative data of physical and financial progress at this critical juncture. It is India would have solid health infrastructure and pandemic preparedness after emerging victorious from the COVID-19 battle.
The COVID-19 pandemic has been referred to as the greatest emergency since India’s independence. And as Constitutional provisions for emergency delineates the take-over of the state powers by the Union government, this health emergency requires more- the Union government must lead from the front, in close coordination, sharp strategy, synergy and informed policy choices with the state governments.
Also, the pandemic necessitated a federal structure, and thus, the Prime Minister Narendra Modi’s idea of cooperative federalism stands the real test of time. A successful manoeuvring through this unprecedented challenge by harnessing artificial intelligence, blockchain and information and communication technology will go a long way in the realignment of subjects like public health and hospitals, consolidate the states’ support and strengthen planning, resources allocation and implementation.
Such efforts would be a milestone in the public health agenda for India, which includes the epidemiological transition, demographical transition, environmental changes and social determinants of health. A close and harmonious relationship between the Union and the state governments with the support of the people demonstrated in this hour of crisis would eventually have an enormous role to play in building the ‘New India’.
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*Respectively: Associate Professor at the Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology (IIT) Kharagpur, and Senior Visiting Fellow at Impact and Policy Research Institute (IMPRI), New Delhi; CEO and Editorial Director of IMPRI; Research Scholar, the Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology (IIT) Kharagpur

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