Who Decides Policy To Fight Coronavirus? The Conflict And A Debatable Law

The pandemic has not been kind to Delhi. The state government, no stranger to pugilist moves in politics, is locked in a grim battle. Even since the lockdown was eased, horror stories have been escaping out of city hospitals like ghouls out to torment the populace. The city’s Covid graph is soaring; overloaded hospitals are turning away patients, letting them die without proper medical care. But what’s a crisis if not an opportunity for some extra lashings of mayhem?

We were not disappointed: two contentious decisions came along from chief minister Arvind Kejriwal to set off a right royal row. One was on barring admission to patients from outside Delhi to state-run hospitals. The order was sent back to the pavilion by the lieutenant-governor, Anil Baijal, before you could pronounce N95. The other was a revised testing strategy—that asymptomatic people will be restricted from testing. Again, the L-G scalped it, directing the state to adhere to guidelines set by ICMR. The soundness of the decisions—or the lack of it—in terms of ethics or effective epidemic policy is one thing. But the episode framed a central conflict at the heart of India’s Covid-19 battle—central being an accidental word there. The key question is: who owns an epidemic?

Also Read | Our Live-in Virus: What Does the Real Covid Map Look Like?

Kejriwal’s U-turn—from being a votary of aggressive testing to a subdued line—baffled all, and gave enough ammunition to the Centre to train its guns on the state. Not only because this was flip-flop—a pandemic is a dynamic flux, and policy needs to be alive rather than rigid. The real issue was whether a state could adopt its own strategy, in tune with its needs, but at variance with the broad national template. There are competing formal frameworks at play here. Health is a state subject under the Constitution. At the same time, a pandemic is a national event—indeed, global. Rich mig­rants courier in infection from abroad, poor migrants connect it to the last mile. It calls for national collaboration to solve it, a measure of uniformity in policy. But how much uniformity? And who examines the content of that policy for its soundness? Whose perspectives would feed it? Does it reflect India’s multiple experiential realities? Is it consultative enough? A restriction on autonomy at state level, essentially, creates the spectre of a monopoly in policymaking. In short, it seems to have fallen upon a tiny virus you cannot see to invoke another thing you cannot see much in India these days: a federal spirit.

In a glance, India’s COVID-19 policy is overwhelmingly within the remit of a central body, ICMR. (How did it get that job? See ICMR story.) States have to kowtow to its decisions, even if those often seem short on logic or transparency. There’s ano­ther entity in play—the COVID-19 National Task Force. It has representatives from all states—an ideal candidate, then, to help set a well-rounded, multi-­voiced policy. But last heard, its own voice was not being heard. Not that too many policymakers across the spectrum knew what to do with a pandemic. In terms of the quality of actors who filled out the roles, all sides come up short—Centre and states, with stray exceptions. That’s why health economist and epidemiologist Dr V. Raman Kutty can ask, “How much can they test? States have limited resources.” That’s not a constraint unique to states—“our health expenditure is very low nationally also,” he rues.

Also Read | Did The Lockdown Work? What Did It Do? Would Have Happened Without It?

Despite being at the forefront of pandemic control, taking decisions that could save lakhs of lives, most states, at least in the initial months, were in the dark about key decisions: testing strategies, lockdown, suspension of travel, zone classification, almost everything. The nationwide lockdown on March 24, with a four-hour advance notice, caught many states by surprise. The resultant migrant exodus also hit them the hardest—states were left bereft, and states had to cope with the deluge—that too with nary a talk of central aid. On top of all that, an older virus was infecting the air too—curiously, in selected states. West Bengal, for instance, where elections are due next year. Trinamool Congress spokesperson and Lok Sabha MP Mahua Moitra says states weren’t consulted on anything—lockdown or the schedule of Shramik trains. “We requested the Centre to shut airports and not to run Parliament in end February-early March. They didn’t listen. Now that the situation is out of control, they want us to handle the situation,” she says.

The contestation between the Centre and states over federal rights is nothing new. Every regime in New Delhi has tried to curtail the rights of states through dubious constitutional means: indeed, the Congress has authored some of those means. However, the last six years have seen increasing centralisation of power. The continuous tussles one sees over West Bengal, Kerala, now Maharashtra…that has tragically cast a shadow over pandemic policy too. “The Centre is completely at odds with the federal spirit,” says Moitra. “Everyone works together in a pandemic. That’s not the case here.” Mithilesh Kumar Thakur, a minister in opposition-ruled Jharkhand, echoes the sentiments. Asking Ranchi before deciding on a lockdown? No such luck, he confirms. “We were never consulted, but it is we who get the huge inf­lux of migrants. Our CM conveyed his reservations about opening up also, that too wasn’t taken into consideration. Now all states are opening up, we too will have to play along,” says Thakur. One of India’s poorer states, Jharkhand’s demand for fin­ancial assistance, especially pending GST dues, have often fallen on deaf ears. Nothing better to exacerbate a tragedy.

Legally Bound

What’s the ideal scenario? Of course, the Centre acting as a facilitator, say most exp­erts. Supporting states with financial support, guiding the laggards with a policy grid detailing best practices, becoming a network of shared knowledge, enabling res­earch collaboration, distributing its fruits, becoming a nodal point for learning and teaching at once. But what one saw was the Centre draw on its legal powers to monopolise decision-making on key asp­ects: testing strategy, drug protocols, suspension of international travel, procurement of emergency supplies, local production of diagnostic kits—things that affected everyone, without anyone being on board. India has invoked the Disaster Management Act (NDMA) 2005 and Epidemic Diseases Act 1897 to do all this, and questions are being asked about the adequacy and validity of the two laws, esp­ecially their conflicting provisions. Under Section 2 of the Epidemic Diseases Act—which came into being after the Bombay plague—state governments can adopt exc­eptional measures to contain a disease. However, under the NDMA Act, the Union health secretary is entrusted with those powers. Says M.R. Madhavan, president, PRS Legislative Research, “NDMA allows centralisation of power, which may not be a good thing during an epidemic. That battle has to be as local as possible.”

Also Read | Does India Have A Milder Epidemic? Not Really

Legal expert Prashant Reddy concurs, saying the century-old Epidemic Diseases Act badly needs an update. “The government shut down the entire country using some flimsy provisions of the NDMA,” he says. Constitutional expert Subhash Kashyap defends the resort to NDMA. “Nobody anticipated such a situation. Legal science tells us existing laws have to be read in context, and interpreted so that the present situation is covered till the law is amended,” says Kashyap. Whatever the legal opinion may be, Maharashtra, the current hotspot, feels aggrieved. “Under NDMA, the Centre possesses the power to decide on international travel. It delayed the suspension despite our demand. That’s the reason for the exponential surge in Mumbai,” says NCP leader and state cabinet minister Nawab Malik. The lack of aut­onomy further hamstrung them. States are in a better position to devise strategies to suit their requirements, he says. “Private labs here were not allowed to get into production of drugs or testing kits, while the Centre erred in buying faulty kits from China,” he says.

A handful of states managed amidst this straitened space—Kerala, Rajasthan and Karnataka, for ins­tance. A non- centralised approach benefited Kerala internally too, points out Dr Kutty. “This happened 25 years back. Panchayats have been trained in disaster management. So when emergency measures were announced, they were ready. It’s one of the good things that came out of the legislation process,” he says. Legislating, as it were, to delegate. But up the chain, it’s still a picture of conflict. Kerala was keen on conducting rapid antibody tests to check community transmission in March, but never got a nod from ICMR. And antibody kits developed by Kerala’s Rajiv Gandhi Centre for Biotechnology (RGCB), sent for approval in April, are yet to be green-signalled. Says Dr M. Radhakrishna Pillai, director, RGCB, “ICMR told us our product didn’t have a high sensitivity, alt­hough it had a perfect specificity. They haven’t said what is required. If we are supposed to re-engineer the kits, we need to know. There’s lack of clarity,” says Pillai.

Lack of transparency is especially problematic, says Dr B. Ekbal, head of the exp­ert panel advising Kerala on tackling COVID-19, because ICMR is neither a statutory body nor a regulatory one. “ICMR works in a bureaucratic set-up. It should act as a dynamic body in this hour. Some standards should be set. Then research ins­titutes should be free enough to market their products based on that. Beyond that, ICMR should not act as a roadblock,” says Dr Ekbal. “States have different sets of problems, so should be free to develop their own strategies. If Kerala is spending money and testing people, why should ICMR object to it? It’s a desire to control,” says Dr Kutty. Karnataka and Delhi too had been keen in April to conduct random antibody tests, but a kind of denialism about community transmission seems to have guided policy. ICMR’s ongoing sero-­surveys are expected to throw some light on the topic now. Dr M.C. Mishra, ex-AIIMS chief, says it’s too late to deny community spread now—“all of us felt it was there, but on a minimal scale. I’d say there was a delay in conducting antibody tests.”

Also Read | 18 Racers On The Block, Who Will Win The Vaccine Race?

Not all are critical of ICMR. Despite being a non-BJP state, the Centre “always cooperated” with Rajasthan, says Rohit Kumar Singh, the state’s additional chief secretary (health). “We have the flexibility to decide our strategy, and never faced any shortage of kits,” says Singh. That’s a model of the dynamic, flexible equilibrium federalism should mean.  

Vox PoP

M R Madhavan
President, PRS Legislative Research

“The Centre has invoked the Disaster Management Act, 2005, which was not designed to handle epidemics. It repurposed this Act to impose the lockdown across the country as it had no other legislation which gives the power to do so. Parliament was in session till March 23 and they could have brought a new Act to tackle the pandemic. The PM announced the lockdown on March 24. From early March, the government has been imposing restrictions and they had enough time to plan it. We also had some flights cancelled and the PM and other ministers had cancelled Holi celebrations in March. They could have passed a broadly-worded emergency Act to manage the crisis. That would have been a better way to do it.”