Journal of Legal, Ethical and Regulatory Issues (Print ISSN: 1544-0036; Online ISSN: 1544-0044)


Need for a National Health Legislation in India: Constitutional Paradigm

Author(s): Aparajita Mohanty, Saksham Kumar

The outbreak of the COVID-19 pandemic has presented law and policy makers throughout the world with socio-eco-politico-legal problems at a scale hitherto unseen. The most pressing of these problems is preventing the spread of the contagion. Though India’s response in tackling the pandemic, in terms of implementing a national lockdown and other administrative measures is laudable, it cannot be overlooked that the absence of a statute-enabled healthcare apparatus at the Centre and State levels, has made the public sceptical of this success. The question arises as to why India has not enacted a National Health Care Legislation like other common law jurisdictions. One of the plausible answers seems to be the fact that “public health and sanitation” falls under the “State List”, making it difficult for the Centre to legislate on it without facing friction from the States, this has consequently led to the shelving of the National Health Bill, 2009. State Autonomy is important and indeed indispensable for India’s democracy to function. However, the pandemic has shown us how inept the States are to tackle a situation of this magnitude on their own. One must therefore, consider what is best for the Nation as a whole and better equip it to effectively square up to situations like these in the future. The National Health Bill, 2009, will be a step in the right direction and we will analyse the Constitutional scheme under the Seventh Schedule to see if an amendment therein can usher it in. Shifting public health and sanitation to the concurrent list may provide a viable solution by giving Parliament the power to make a national legislation and at the same time allowing the States the flexibility to supplement it according to their unique requirements.

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