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The COVID-19 Chronicle: An Analysis Of Institutional Execution Of The Constitutional Mandate

Jayati Sinha & Samridhi Nain
18 May 2021 10:18 AM GMT
The COVID-19 Chronicle: An Analysis Of Institutional Execution Of The Constitutional Mandate
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Background of Constitutional Obligation: Access of Right to Health When faced with determining issues of medico-legal significance, Indian courts have emphatically highlighted the constitutional obligation cast upon the government to lend paramountcy to the safety and wellbeing of the citizenry. In the Paschim Banga Khet Mazdoor Samity & Others case, the Supreme Court emphasised...

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Background of Constitutional Obligation: Access of Right to Health

When faced with determining issues of medico-legal significance, Indian courts have emphatically highlighted the constitutional obligation cast upon the government to lend paramountcy to the safety and wellbeing of the citizenry. In the Paschim Banga Khet Mazdoor Samity & Others case, the Supreme Court emphasised that as a welfare state, the improvement of public health is a primary duty, hence, it is obligated to provide adequate medical facilities to citizens. This duty is constitutionally endorsed through Article 21 and Article 47 which obligates the government to provide ease of access to quality health care through hospitals and health centres without placing any qualifications on such access. But due to the limited medical resources available, such 'qualifications' are enforced as part and parcel of the Executive's policy, which the Court is generally reluctant to traverse.

Such reluctance was also demonstrated in the 1998 case of Ram Lubhaya Bagga which makes Justice A.P. Misra's words seem prophetic given the present public policy circumstances. The judgment analysed the policy decisions implemented by the government for reimbursement of the government employees' medical expenses. Affirming the State's right to formulate and modify its policy, the Court held that testing the validity, utility or beneficiality of a policy 'does not normally fall within the domain of any court except where it is arbitrary or violative of any constitutional, statutory or any other provision of law'. The Court's apprehension arose due to its reliance on facts set out on affidavits which may prove to be 'dangerous'.

The Judicial Camouflage of Executive Functions

The Courts are not placed in an appropriate position for the development of policy as also demonstrated by the Patna High Court's remarks that courts can be misled by false assurances through affidavits. But false affidavits are not the only restraints on judicial power. Territorial restraints of the Delhi High Court orders have been ineffectual to compel Haryana government to open up borders for providing oxygen tankers to the non-industrial state. Though the Court resorted to issuance of showcause contempt notice against the Central Government, the challenge of the notice in the Supreme Court to delay its implementation proves that Judiciary cannot compensate for Executive's infirmities. But Courts have attempted to jerk the Executive in action by constituting a Task Force and demanding plans of action from the Central government.

The hesitation of Executive to take action according to regional capacity due to fear of blame has evolved it as a mere vehicle for enacting States' discordant policies. Such as in Uttar Pradesh where the government's letter referral policy caused much uproar. According to the policy the Chief Medical Officer was required to address a letter to the hospital after checking the patient's RT-PCR test report (which itself is in short supply) to ensure only severe cases were provided with hospital beds. Though the policy has been retracted, it proves that the State governments have resorted to excessively restricted measures to ensure supply of medical provisions in whatsoever limited manner.

This has led to an enhancement of spillovers with regard to COVID-19 patients seeking admission in nearby states' hospitals while supply of oxygen and other medical resources are being arranged pursuant to judicial orders only.

 Enlisting The Disregard of Constitutional Mechanisms

The Central government's neglect of the State governments while devising a national policy became especially pronounced when Phase III of the vaccination programme was implemented. This led to shut down of several vaccination centres in Delhi and Maharashtra due to shortage of vaccines; and remained in ignorance of digitally illiterate citizen's capacity to book slots at the vaccination centres. The Central Government's export of over 7.47 crore doses in adherence to the commercial agreements and vaccine alliance programme have led several states such as Uttar Pradesh, Maharashtra, and Delhi to resort to releasing global tenders for procurement of vaccines. It is speculated that the tenders may not receive a positive response for two reasons: a. the suppliers are suffering from a backlog of upto millions of doses due to suppliers' incapacity to keep up with demands; b. an increased competition amongst the States will only benefit private players & strain the States' depleting financial resources.

Moreover, by virtue of Entries 10, 11 and 14 of the Union List, the Union Government is under a constitutional obligation to deal with foreign affairs, assert trade representation and enter into agreements along with implementation of such agreements with foreign countries and represent the nation; similar to the European Union bloc and African Union bloc as they successfully secured the vaccines for its member states. But in absence of a cohesive strategy from the Central government has pushed the citizenry towards piling PILs in courts to prepare and enforce policies such as use of PMCARES Fund for procurement of vaccines.

The 15th Finance Commission had made a recommendation to shift Entry 6 (public health and sanitation; hospitals and dispensaries) of the State List to the Concurrent List to provide better coordination of financial and medical resources. The COVID-19 episode has demonstrated that such a shift may have remained unutilized as is the case with Concurrent List's Entry 29 which deals with prevention of infectious or contagious diseases from one State to another. The Constitution demands a coherence in governance through Entry 29 when the nation is facing the pandemic, but the conspicuous absence of cohesion became apparent with the inconsistent invocation of statutes by the Centre and the states, as Maharashtra and Delhi invoked the Epidemic Diseases Act before the Centre invoked the Disaster Management Act. The Central Government's precipitous action of implementing the first national lockdown remained in ignorance of the duty under Entry 81 of Union List to provide for ease of inter-state migration and inter-state quarantine. This led to state governments using their own trial-and-error method to combat the spread which protracted labourers' misery. It was the Supreme Court which finally brought uniformity in formulation of policy.

Lessons From The West Lessons

The approach undertaken by the United States of America (US) provides plenty of lessons for India. Several US States such as New York, New Jersey, Connecticut and Pennsylvania enacted their policies in coordination, and such partnerships were also formed by West Coast, and Midwestern States. For reopening, Governors avoided 'one state one policy' rule and the counties were given liberty to enact the safest policy as necessitated by regional conditions.
Moreover, the President invoked Defense Production Act to provide the supply of several items which were in short supply, such as protective gear, ventilators, etc. which provided significant relief to the States. Though US suffered a vacuum in federal leadership in 2020 with disregard for reliable data and science, the States' coordination led to the containment of the disease along with a successful vaccination drive of about 88% of US citizens.

Indian states are facing a similar scenario and scuffling over access to medical resources with Maharashtra's Chief Minister requesting the Prime Minister for grant of licences in order to sell essential medicines like remdesivir for domestic market. The Central Government was evidently unprepared for a second-wave as the supply of oxygen and other medical supplies was not escalated by utilizing Entry 52 of Union List which gives Union the control of industries declared to be in public interest by the Parliament by law. The Supreme Court also questioned the Central Government for unavailing Entry 49 to grant compulsory licensing for COVID-19 medicines.

The National Disaster Management Authority (NDMA) headed by the Prime Minister, which is responsible for the management of the pandemic, suffers from its own set of restraints. While it is responsible for providing policy plans, the non-representation of States in NDMA amplifies deficiency of essential factors such as data and regional conditions that require consideration for policy formulation.
The present circumstances have enhanced the need for establishment of an Inter-State Council as unlike NDMA, the States' possess power to promulgate ordinances to enact required policy measures through legal means. The Constitution endows the President under Article 263 to constitute an Inter-State Council where dual purposes can be served: (a) disputes arising between States, such as Delhi & Haryana over the refusal to provide oxygen tankers, can be resolved and (b) discussion over subjects of common interest can lead to prudent recommendations. Considering the States' financial constraints, the Union Government can confer conditional powers to States under Article 258(1) to enable the executive branch to act according to the region's needs. The invocation of Article 258(1) will provide States the right to have its treasury reimbursed by the Union for extra costs of administration by virtue of Article 258(3). The governments gain sovereignty and legitimacy from the constitutional principles; thus it is crucial that in times of crisis the constitutional obligations of the State towards the citizens do not suffer from a delay and remain in wait for judicial orders.

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