Constitutional crossroads in India: perspectives from federal constitutional history on allocating competency over public health

This article examines the nascent proposal in India advising that public health should be shifted from the exclusive state legislative list to the concurrent legislative list of the Constitution of India. This proposal raises complex constitutional, administrative, and political questions animating federal democracies about the roles of various levels of government in public health policy, administration and delivery. Unfortunately, the 15th Finance Commission (supported by other entities) does not provide full reasons for their proposal, or the constitutional, administrative and political dimensions of this proposal. In this context, this paper attempts to throw some light on the constitutional history of public health being a state subject in India, by examining seven pre-independence constitutional documents that briefly but clearly addressed the subject. All the constitutional documents illustrate how public health was at first devolved, thereafter distributed to state competency, and eventually settled for exclusive state competency. However, colonial administrators raised a constant caveat that devolution/distribution of powers over the subject should not deter the coordination of the subject. It is suggested that this caveat should inform the future debate on whether health should be a state or concurrent subject, especially since coordination is not possible unless the centre also has a minimum of legislative competency over the subject. The actual subjects/topics on which coordination in the field of public health is necessary is a matter appropriate for discussion and determination by public health professionals.