This Article is submitted by –
Tasha Bluewin Joseph, Law graduate from Jindal Global Law School
The outbreak caused by covid-19 originated from Wuhan in China and has spread to 187 countries, making the WHO declare it as a pandemic.[i] India is a signatory to the World Health Organization’s (‘WHO’) International Health Regulations (‘IHR’), however its domestic laws are non-compliant of the same. To contain the spread of the virus or Covid-19, a nationwide lockdown till May was announced by the National Disaster Management Authority (‘NDMA’).[ii] Ever since the lockdown was announced, the government has tried to ensure the containment of the virus and ensure the continuation of essential services and enhance medical support to health personnel and infected patients. However, the current pandemic has made it clear that India lacks a coherent and cogent legal framework to manage a public health emergency of the magnitude we experience today. This is because India does not have legislation dedicated to a ‘pandemic.’ On taking a look at the legal frameworks in place in other jurisdictions, it becomes apparent that India requires an urgent formulation of a comprehensive public health law to deal with public health emergencies.
National Laws on healthcare in India
The Epidemic Diseases Act (EDA), 1897
It is seen that the government has chosen to resort to a 123-year-old law on epidemics, known as the ‘Epidemic Diseases Act (‘EDA’), 1897, which was formulated by the colonial rulers of former India.[iii] This law was enacted to fight the bubonic plague in the erstwhile Bombay.[iv] It comprises of four sections spread over three pages. Despite its brevity, it was used to handle several disease outbreaks in the past, such as swine flu, dengue, and malaria.[v]
The EDA fails to define important terms such as ‘contagious diseases’ and an ‘epidemic’.[vi] It also lacks detailed guidelines on determining a definite benchmark for establishing a disease as an epidemic. It also lacks a legal provision on the medical, quarantine, and other preventive measures that should be taken.
Another issue with respect to the colonial legislation is that it is ill-suited to the present federal structure of Indian democracy. The central government can only render advice to invoke the provisions of the Act to make them enforceable in the states and union territories. It cannot mandatorily impose it[vii] as it lacks the authority to intervene in biological emergencies as per the Act. Public health is a subject to be legislated upon by the states[viii] and the EDA additionally give states ultimate discretion to take measures by framing appropriate regulation.[ix] It also enables state governments to determine in what manner and by whom any expenses incurred, including compensation, shall be met. It is clear that the power granted to the centre under this Act is minimal. This is a concern since not all states have framed regulations to contain the spread of the virus. There is a lack of uniformity and coordination in the fight against the virus, creating more pandemonium among the states.
Article 43 of the IHR[x], calls for proportionality of measures taken during a health emergency. However, the measures taken since the lockdown, stand as evidence of a complete disregard for imposing ‘proportional’ restrictions or taking ‘proportionate’ measures during the pandemic. While it is inevitable that the suspension of rights occurs during an emergency, a balance has to be struck between protecting the health and fundamental or human rights of the citizenry.[xi] It is seen that the EDA permits extraordinary, and unlimited discretionary powers to the executive which were seen as necessary to contain the spread of an epidemic.[xii] Section 2 and 2A of the Act expressly allows the state and central governments respectively, to take temporary measures in handling the virus if ordinary provisions of the law in force are insufficient for the purpose.It carries a legal assumption that the general public is inferior to the government in power and requires the populace to lay their faith in the measures taken by the government to be in the nature of good faith. It focuses on the powers of the government and is conveniently silent on the people’s rights.[xiii] This is evident in the impact seen on the freedom of movement and assembly of the citizens, which is essential for the prevention of the spread of the virus.[xiv]There was also a complete ban on commercial flights, visa restrictions, and a ban on entry into public areas of entertainment. Further, any Indian who disobeys an order made by the state government under this Act can be punished under S. 188 of the Indian Penal Code, (‘IPC’) 1860.[xv] It is relevant to note that some states have also imposed restrictions on gatherings under the Criminal Procedure Code (‘CrPc’), to control the situation at their own discretion.[xvi] These may be some examples of disproportionate measures achieved by the invocation of the EDA to combat the crisis and provide a legal substance in enforcing rules and regulations.[xvii] It is thus, not unreasonable to suppose the misuse of the powers by the executive, which would violate the rights of the citizens, considering the expansion of powers to the central government under the ordinance[xviii] amending the EDA. This violation of rights includes the right of privacy which is seen as part of Article 21 of the constitution.[xix]
The implementation of the EDA with its draconian reach inevitably harms the lower classes of the society due to their unawareness of the ambit of rights.[xx] India, being a democratic nation, must avoid using any arbitrary measures based on discretion to control and manage such situations. Such an act is anachronistic in a democratic polity. Thus, it is safe to say that the EDA doesn’t meet constitutional thresholds under article 19 and 21 of the constitution.[xxi] A government may require excessive powers to deal with a public health emergency, but these immense powers must cease to operate once the crisis ends.[xxii]
The Disaster Management Act, (DMA) 2005
The Disaster Management Act, (‘DMA’) 2005, was enacted to provide for the effective management of disasters. The definition of “disaster” in the act has been interpreted to include biological emergencies such as the current pandemic. The government declared the disease to be a ‘notified disaster’ under the existing DMA.[xxiii] This was done for the effective management of the pandemic.
The union government invoked section 69 of this Act to delegate certain powers to the Home Secretary ( the ‘Chairman, National Executive Committee’) to take necessary measures to curb the virus. This provision allows the national or state executive committee (as the case would be) to delegate some essential powers and functions to the chairperson or any other member or any officer, subject to such conditions and limitations, as specified in the order. This Committee is to assist states under the State Disaster Response Fund (‘SDRF’), constituted under Section 48(1) (a) of the Act.[xxiv] Further, a directive was issued to all the states eligible for SDRF specifying the ‘list of items and norms of assistance for containing the virus. However, the absence of specific guidelines leaves a lot at the discretion of the executives leading to possibilities of misuse of power and taking of arbitrary actions.[xxv]
It becomes glaringly apparent that India’s laws on healthcare are deficient of what the covid-19 crisis demands at this hour.[xxvi] The EDA, a colonial remnant, is ill-suited to serve the country’s health and emergency needs. At best, this Act facilitates the assumption of immense powers by the central and state governments and remains silent on respecting the rights of the citizens during this period. The government’s heavy reliance on the DMA has also proved to be equally inefficient and ineffective in handling the coronavirus crisis.[xxvii] Both laws are insufficient in handling the multi-dimensional complications posed by the pandemic. We need reforms in healthcare in the form of a comprehensive overarching law to capture modern-day health challenges and suit them to contemporary needs.[xxviii]
Comparison with legal frameworks of other countries
It is seen that countries around the world such as Australia, the USA, and Spain have legislation in place to deal with health emergencies. For instance, the Australian constitution provides its Government with legislative powers to quarantine. An overarching law called the National Health Security Act (‘NHS Act’) and Agreement is also in place to abide by the obligations toward the IHR.[xxix] Similarly, in the United States, the Health and Human Services (‘HHS’) Department has laid down specific guidelines to assist states and prevent the spread of infectious diseases. The Robert T Stafford Act (‘RTS Act’) allowed unilateral invocation of emergency by the President. Under the Federal Food, Drug, and Cosmetic Act (‘FFDC Act’), the HHS secretary has the power to authorize medical countermeasures during emergencies.[xxx]
The European Union decision 1082/13 serves as the principal legal instrument for threats to health, which endorses compliance with WHO’s IHR.[xxxi] This decision of the EU requires signatory states to develop national plans for pandemics such as rationing of resources, enforced isolation or quarantine, and so on.
In China law, the law on Prevention and Treatment of Infectious Diseases (‘PTID’) categorizes infectious diseases into three classes based on their infectiousness and likelihood to cause an epidemic.[xxxii] Although Coronavirus was considered as a class II disease, strict control measures were imposed to contain the virus’s spread.[xxxiii] It was also treated as a disease requiring mandatory ‘quarantining’ under China’s Frontier Health and Quarantine (‘FHQ’) law. While China does have a legal framework to handle medical emergencies, the implementation of the same by the executive, however, often leads to grave human rights violations.
Canada, like India, seems to lack a national comprehensive and overarching law on handling health emergencies. It uses the justification that the constitution assigns responsibility for health to the provinces. This waives off the responsibility of the national parliament in health matters making it incompetent to pass epidemic laws.[xxxiv] This claim of the federal government has been challenged and proved to be inaccurate legally and in contravention of the IHR.[xxxv]
Need for an overarching Healthcare Law
There is a lack of proper overarching law and legal framework for public healthcare and facilitating support to India’s medical infrastructure. India requires concrete legislation with systematic instructions to be passed by the parliament.[xxxvi] This can only be achieved through the collaborative efforts of the central and state governments. Two bills are currently pending for deliberation after the situation settles, namely: the National Health Bill (‘NHB’), 2009 and Public Health (Prevention, Control, and Management of Epidemics, Bioterrorism And Disasters) Bill (‘PHB’), 2017. The NHB ensures the right to emergency treatment and care as well as the protection to well-being, equity, and justice.[xxxvii] It recognizes the right to health as a fundamental right. It provides necessary governmental steps for the prevention, treatment, and curbing of diseases.[xxxviii] Additionally, these legislations provide for mandatory quarantining and holding the government legally responsible in cases of misuse of power during a public health emergency. Such drafting would ensure certain credibility and accountability on the government to avoid the abuse of power. It would fill in the loopholes left by the former legislations. Moreover, a well-drafted legislation would make curbing the spread of a pandemic, more efficacious.
The current health crisis cannot be effectively managed with the existing laws in India. There is an absence of legal provisions to enforce any mandatory procedure to contain the virus, such as compulsory quarantine or ensure accountability of departments and punitive actions in case of non-compliance. None of the aforementioned Indian legislations meet the purpose of efficiently handling a health emergency like the coronavirus pandemic. Some of them are at best rudimentary, while others are anachronistic from a public health and human rights perspective. There is a need to bring in reform by formulating another comprehensive and ethical overarching healthcare law once the pandemic is under control.[xxxix]
“The views of the authors are personal“
[i] Kavya Jha & Palak Kapoor, The Legislative Framework to Combat Pandemics: An Analysis of India and China, RSRR, (2020), http://rsrr.in/2020/04/14/the-legislative-framework-to-combat-pandemics-an-analysis-of-india-and-china/.
[ii] S. 6(2) (i) of the Disaster Management Act, 2005, No. 53, Acts of Parliament, 2005.
[iii] The Epidemic Diseases Act, 1897, No.3, 1897.
[iv] Kiran Kumbhar, Epidemic Diseases Act, India’s 123-Year-Old Law to Help Fight the Pandemic, THE WIRE, (March 22, 2020) https://science.thewire.in/health/epidemic-diseases-act-india-pandemic/.
[v] Colonial-Era Law To Fight Pandemic In India, SGT UNIVERSITY, (June 6, 2020), https://sgtuniversity.ac.in/colonial-era-law-to-fight-pandemic-in-india/.
[vi] Harshita Agarwal, The urgency for improvisation of existing Public Healthcare Law in the battle against pandemic, SSRN, (June 26, 2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3636139.
[vii] What Is Coronavirus (Covid-19)?,BUSINESS STANDARD, https://www.business-standard.com/about/what-is-coronavirus#collapse.
[viii] INDIA CONST. schedule VII.
[ix] Agarwal, supra note vi.
[x] International Health Regulations, World Health Organization, (2005).
[xi] Agarwal, Supra note ix.
[xii] Kumbhar, Supra note iv.
[xiii]Rakesh, P. S., The Epidemic Diseases Act of 1897: public health relevance in the current scenario, 1(3),INDIAN JOURNAL OF MEDICAL ETHICS, (2016).
[xiv]Jha & Kapoor, Supra note i.
[xvi] Section 144, The Code of Criminal Procedure, 1973, No.2, Acts of Parliament, 1974.
[xvii] Dhruv Nyayadhish & Harshita Palrecha, Invoking The Epidemic Diseases Act, 1897 In Light Of The Epidemic Diseases (Amendment) Ordinance, 2020, SSRN, (June 12, 2020), https://ssrn.com/abstract=3627581.
[xix] Justice K. S. Puttaswamy v Union of India, (2018), Writ Petition (Civil) No. 494 of 2012, Supreme Court of India.
[xx]Prashant Kidambi, An Infection of Locality’: Plague, Pythogenesis and the Poor in Bombay, c. 1896-1905, Urban History, vol. 31, no. 2, JSTOR, 249, 260–267 (2004) www.jstor.org/stable/44614117.
[xxi] Section 54, The Disaster Management Act, 2005, No. 53, Acts of Parliament, 2005.
[xxii] Supra note vii.
[xxiii]Malavika Rajkumar, Coronavirus: A quick guide to the laws the Indian government can invoke to fight epidemics, SCROLL.in, (Mar 24, 2020, 12:30 PM), https://scroll.in/article/957029/coronavirus-a-quick-guide-to-the-laws-the-indian-government-can-invoke-to-fight-the-pandemic.
[xxiv] The Disaster Management Act, 2005, No. 53, Acts of Parliament, 2005.
[xxv] P. S., supra note xiii.
[xxvi] Nyayadhish & Palrecha, supra note xvii.
[xxvii]Mayank Shandilya, The Disaster Management Act, 2005 and Epidemic Diseases Act, 1897- Are these Acts Sufficient in Tackling the Pandemic/Health Emergency, SSRN, (June 15, 2020), https://ssrn.com/abstract=3627433.
[xxviii] Nyayadhish & Palrecha, supra note xxvi.
[xxix] Geetika Srivastava, To fight a pandemic like COVID-19, India needs overarching healthcare laws, BUSINESS STANDARD, (March 22, 2020, 9.58 PM), https://www.business-standard.com/article/current-affairs/to-fight-a-pandemic-like-covid-19-india-needs-overarching-healthcare-laws-120032201137_1.html.
[xxxi] Jha & Kapoor, supra note xiv.
[xxxiv] Amir Attaran & Kumanan Wilson, A Legal and Epidemiological Justification for Federal Authority in Health Emergencies, Vol. 52, No. 2, MCGILL LAW JOURNAL,381, 400-414, (2007).
[xxxvi] M. Kakkar et al, Influenza pandemic preparedness and response: A review of legal frameworks in India. INDIAN JOURNAL OF PUBLIC HEALTH, (2010).
[xxxvii] Agarwal, supra note ix.
[xxxix] Ethical considerations in developing a public health response to pandemic influenza, (No. WHO/CDS/EPR/GIP/2007.2), Geneva: World Health Organization, (2007), https://www.who.int/csr/resources/publications/WHO_CDS_EPR_GIP_2007_2c.pdf?ua=1.