Dear Central Ministers, Health Is a State Subject But Not Pandemic

The Modi government must know that the burden of managing the pandemic can’t be placed on the state governments.

“Health is a state subject” has become a catchphrase for many ministers and leaders of the Central government to defend its fractured vaccination policy.

(Photo: Kamran Akhter/The Quint)

“Health is a state subject” – this has become a catchphrase for many ministers and leaders of the Central government to defend a fractured vaccination policy. From Finance Minister Nirmala Sitharaman to Railway Minister Piyush Goyal, the BJP-led Centre has often passed the buck onto state governments for failure to curb the COVID-19 crisis.

BJP Delhi’s Facebook Page

Health Minister Dr Harsh Vardhan himself coined a fancy term to counter the rising criticism of the Centre’s decision to decentralise the procurement of COVID-19 vaccines – “shared idealism”.

“Shared idealism”, “state subject”, “decentralisation” – these terms are being used by the Union ministers to divert attention from what the law and the courts have said about managing a pandemic. While health is a state subject, the Constitution has envisaged “pandemic” as a specific issue, on which not just state governments, but even the Central government can legislate.

Pandemic – A Concurrent Subject

Schedule 7 of the Indian Constitution lays down the distribution of power between the Central and the state governments. The Schedule has divided “items” of legislation into three lists:

1. Union List: For items under this list, only the Central government can make laws
2. State List: For items under this list, only the state governments can make laws
3. Concurrent List: For items under this list, both the Central and the state governments can make laws

Item 29 on the Concurrent List is described as “prevention of the extension from one state to another of infectious or contagious diseases”. This clearly shows that making rules for managing a pandemic is not just the responsibility of the state governments.

The position of law on this issue was also clarified by the Supreme Court while defending its decision to take suo motu cognisance of the COVID-19 crisis in the country. The apex court on 27 April had said that since the consequences of the COVID outbreak have transcended state boundaries, it had become imperative to seek accountability from the Central government on the nationwide management of the pandemic.

Vaccination – Centre Can't Shrug Responsibility

The “health is a state subject” catchphrase has mostly surfaced as a response to questions being asked on the Centre’s “liberalised” and “decentralised” vaccination policy. As per that policy, while the Central government will procure 50 percent of the manufactured vaccines for the 45+ age group at a subsidised price, state governments are responsible for procuring vaccines for the 18-44 age group in the open market.

Further, state governments are also expected to float global tenders in order to procure vaccines from abroad.

This policy is a diversion from India’s established vaccination policy. Historically, vaccines have always been imported by the Central government. Whether it was the measles or the HPV vaccines, state governments have never been asked to float global tenders for procurement. The practice of centrally procuring vaccines was attached to the goals of “national immunisation” – which required greater control of the Central government.

Even for domestically manufactured vaccines, the Central government has been the dominant procurer.

Criticism From The Courts

The liberalised vaccination policy and the “health is a state subject” bogey have faced serious criticism from courts across the country, including the Supreme Court. On 31 May, the apex posed tough questions to the Centre’s rationale behind the dual procurement policy.

You want the state governments to compete with each other to procure vaccines from private manufacturers? You can’t just say that you’re the Central government and you know what’s right. We have a strong arm to come down on this.

Supreme Court 

While hearing the suo motu case on the COVID-19 crisis, the apex court told the Centre that it “must wake up and smell the coffee and see what’s happening across the country”.

We have to see the policy, we have to understand the rationale behind dual procurement and differentiated pricing. How do you justify states like Uttarakhand and Goa being made to procure vaccines on their own for everyone? Why do the states have to pay a higher price? You have to ensure that vaccines are available at the same price across the nation. You can’t have different prices for the Centre and the states.

Supreme Court

Commenting on the shortage of vaccines, the Karnataka High Court on 27 May noted that both the Centre and the state governments have to take responsibility under Article 14 of the Constitution. Moreover, asking the Central government to reconsider its vaccination policy, the Madhya Pradesh High Court on 25 May said:

Central government should take upon itself the responsibility of providing the required number of vaccination doses to the state by setting up more units in all the states with required licence from local manufacturers, to ramp up the production of the vaccination on a war footing.

MP High Court

Criticism Falls on Deaf Ears

Despite the criticism, suggestions, and directions from across the board, the Central government has not budged an inch from its vaccination policy. Affidavit after affidavit, statement after statement, it uses “health is a state subject” as an escape route.

The practice of dumping the burden on the states is not just against the established principles of law and policy, but also highly hypocritical. While PM Modi’s face is all over CoWin and vaccination certificates, his government refuses to take responsibility for a robust mass vaccination campaign.