The Central and the State Governments are working towards containing the COVID-19 pandemic which has proved to be one of the gravest public health crisis in recent global history. India’s response to this virus has largely been through a set of series of guidelines issued by the Union Home and Health Ministries invoking the Disaster Management Act, 2005 to State Governments. In addition to this the States themselves in some cases, are acting upon their own volition.

Some have characterised the Union Government’s response to the pandemic as a ‘unilateralist’ and ‘top-down’ approach, carried out without sufficient consultations with the States. The Disaster Management Act, 2005 empowers the Central Government to undertake even extraordinary measures to contain and tackle COVID-19. How does the Constitution of India, 1950 carve roles for the Union and State governments in the area of public health?

Article 246 of the Constitution of India, 1950 along with Seventh Schedule distributes subject matters between the Union and the State to legislate. The Seventh Schedule provides for the Union List on which the Parliament is empowered to legislate upon, the State List on which the State legislatures could draft laws, and the Concurrent List which is open to both Union and the State to legislate upon. The matter of ‘Public health and sanitation; hospitals and dispensaries’ comes within the State List.

Interestingly, during the Constituent Assembly debates around Seventh Schedule, HV Kamath sought to move ‘Public Health’ from the State List to the Concurrent List. Historically, he argued,  public health was a ‘Cinderella of portfolios’ – an often neglected portfolio in the Cabinet. He believed that with the conditions of public health in India being very poor, making it a subject under the concurrent list would better enable the States and the Centre to tackle public health concerns.

Brajeshwar Prasad took a step further and argued for ‘Public Health’ along with all the items under the State List to be transferred to the Union List. He berated the then existing public health system and infrastructure and went on to say:

If the nation is to be saved from the scourge of disease and epidemics, all powers as far as this entry is concerned must be vested in the hands of the Centre. Of course I fully appreciate the point that by wresting those important powers Provincial autonomy will be modified to a very large extent, but provincial autonomy is not an end in itself. It is only a means to an end-the end being the economic political and cultural advancement of the people of this country.

Both Kamath and Prasad’s efforts were unsuccessful and the Constitution provided only for the States to legislate on ‘Public Health’.  Recently, in 2019 a High Level Group that focussed on public health, constituted under the Fifteenth Financial Commission, echoed Kamath’s proposal and recommended that ‘Public Health’ be moved to the Concurrent List.

The unfolding coronavirus story can be instructive in determining what federal structure is most effective in tacking pandemics and more generally, public health.