This article has been written by Dipsa Prasanth.

Introduction

Just a stone away from the menacing COVID-19 and unstructured health legislation has unveiled blazing blemishes in India’s domestic laws, allied to health. This mustered the Epidemic Disease Act of 1897, a 123 year old colonial law to bulwark the bane of 21st century. 

India has an inordinately dilapidated landscape for health policies without an integrated law to hold them together. Public health and sanitation is embedded under the state and local governments, with the centre having negligible say. With just eight states having legislation for public health, India wants a draughtsman to sketch an integrated health emergency law.

The neoteric happenings of COVID-19 coupled with large scale self-isolation, quarantine etc, has raised the question of violating an individual’s autonomy, dignity and liberty, although we allow these interventions for the government to act in the best interest of the population. But the extent of these powers are still to be formulated. This article will mainly be focusing on the legal framework of India to fight the health emergencies with COVID-19 and Epidemic Disease Act of 1897 being the focal points.

Epidemic Diseases Act, 1897: An overview

When there is a health emergency on heel, the primary resort available with the Indian government is this 123 year old colonial law, the Epidemic Disease Act of 1897. The history of this act traces back to 4th February 1897, when the city of Bombay was drenched in the bubonic plague. Thus, owed as the bible of epidemic management with four sections spread over three pages; this has been India’s rampart fighting diseases including malaria, cholera, flu etc. But, computing the ferocity of the COVID-19, this bygone legislation stands fragile.

For thriving in the domain of health, a country shall have competent laws which are updated with respect to the contemporary situations and thus be refurbished and comprehensive. This will help the country to customise their actions according to the health emergencies. The dearth of an updated law has made India resort to Sec. 144 of CrPC to manage its health emergency.

The act fails to elucidate, “Infectious”, “dangerous”, or “contagious diseases” and delegates the power to the state and local governments to take action of certain crude facet of quarantine of suspected individual, travel bans, inspection of ships and vessels etc. It’s meant to deal with ‘dangerous epidemics’, a term not interpreted by the law. Clause with respect to punishment under this act shall also be revisited as it demands for a fine of 200 INR and an imprisonment up to a period of one month.

How powerful are the states?

The Epidemic Disease Act of 1897 provides higher stakes to the state and local governments over the centre. Also, the public health and sanitation are comprehended under the state list thus making them competent to make legislations in this particular domain. Haryana, Uttar Pradesh, Maharashtra, Delhi and Karnataka have invoked their powers to make legislations pertaining to this realm. The legislation includes using Non- Pharmaceutical Interventions otherwise known as NPIs to contain the spread of pandemics, this includes ways other than medical containment for example closing of educational institutions, prohibition of assembly of large crowds, closing of shops, religious places etc. The state authorities shall further delegate the power to officers like District Magistrate who will issue notices for lockdown. They can also impose strict restriction in containing spread of fake new relating to the pandemic and provide the offender with strict punishment.

But with all these, there isn’t any limit to the power that these authorities exercise, as it is said using immoderate power without lucidity can have a dismissive footprint. This act provides the state with intimidating powers which can be a noted ultimatum to the privacy of an individual. The state can misuse the provided power targeting certain individuals, mass quarantining etc. Thus it will spoil the innate essence of democracy.

Case study

The Indian constitution was made after continuous deliberations and discussions by eminent heads; they borrowed the best provisions from across the archipelago. These same methods can be adopted while drafting a law for health emergency. Here, we will be looking at examples from two countries that are of Spain and Australia.

Examining Australia, Article 51 of the Australian constitution provides for a system whereby their federal government will have the powers to quarantine when and where it is required. This makes them deal with quarantine and health emergencies with strict terms and conditions. Also to enhance the binding nature of the International Health Regulation (IHR) they have linked it with an agreement of National Health Security Act of their country. Apart from this they have established certain coordination entities to cater the needs when a pandemic sets on. This will hence provide with a transparency and also the surveillance department of the healthcare will provide its people knowledge about any notified diseases.

Now studying the parameters of Spain, they too have a well efficient system of pandemic management. In this system established through law whenever there is a health emergency all the private hospitals will be nationalised and will be set under the guidelines of the government of Spain.

The Stumbling Block

With the rampant outbreak of COVID-19, there were serious questions raised upon the laws dealing with health emergencies in India. This had brought into limelight some glaring gaps in the laws fighting pandemics or other major health emergencies in the country. Some of the prime pitfalls are as following:

• The main stumbling block in India’s pandemic law is the federal structure of democracy whereby the power is delegated to the state governments, in making legislations on public health and sanitation, thus making the central government less powerful. Till date in India, not all states have formulated their rules and regulations pertaining to containing any pandemic and those who have made it are still pondering over its pros and cons.
• Also, the act of 1897 which becomes the primary law of fighting pandemic in India does not as such deal with the surveillance of the suspect, vaccination, public health etc.
• Another major challenge afflicting the act is that it does not impart or talk about the rights of health care workers. There are no properly written laws regarding the life insurance of health workers, their protection etc, which will cater as a default in the Indian health laws.
• Next up is the privacy rights of the patients. There are no laws that separately deal with the privacy issues like the patient’s medical information etc that becomes a paramount concern.
• The travel restrictions and closing down of the domestic flights during a pandemic is not in aligning with the parameters of International Health Regulations (Article 43).
• This act does not mention anything about the duty or rights of an individual during a situation of widespread pandemic. Thereby ignoring the role of civil society in pandemic management.

Why an Integrated Law?

The need of the nation now is an integrated law to manage the health crisis of the country. India has certain acts like the Indian Ports Act, The Aircrafts Act, the Livestock Importation Act etc which will help it manage the situation of a pandemic but an integrated law will be a one window solution to the entire bone of contentions. The legislation shall bestow the government with both the trigger and the caveats to fight the tussle in an orderly manner. If there is an integrated law then there will be more transparency and comprehension.

The present law does not cater for an equal access to health facilities and has totally ignored the responsibility of the society in managing the pandemics. The new fangled integrated law shall find a balance between the state and its people and co operative mechanisms of pandemic management. Also, there is no mention about efficient lockdown rules, distribution of pre-requisites and medicines, proper isolation and centralised quarantine facilities etc. There is a high chance of misuse of power by the state authorities as there is no restriction on the usage of power by the primary law.

There were certain efforts made to improve the laws pertaining to health emergencies. Naming a few, the National Health Bill of 2009 which was discarded by the state as it felt this act will be an intrusion into their territory by the centre. Next one is the Public (Prevention, Control and Management of Epidemics, Bio-Terrorism and Disasters) Bill drafted in 2017, which is still tabled in the parliament, though even this has failed to include local government while managing pandemics.

The Plan of Action

The plan of action for fighting any pandemics in the future shall have a proper lesson learned from COVID-19. The law makers shall now consider revising the bygone Epidemic Disease Act of 1897 and look for a more comprehensive and updated law while dealing with health emergencies. If this does not happen then this glaring gap in the policy will become India’s Achilles’ heel. 

We shall urge for an integrated law which shall be made with proper forethought and groundwork. This shall include the rights of health workers; address the issue of right to privacy of patients, a proper lockdown law other than sec 144 of CrPC, proper checks and balances with respect to the power of the state authorities etc.

The Disaster Management Act of 2005 was not designed to deal with health emergencies, there is no clause in this act defining health crisis to be a disaster, the curfews and lockdown that has been invoked was under this act which doesn’t even include health crisis in it. Thus we need a well defined law which will deal with situations pertaining to health emergencies.

Conclusion

The health emergency laws in India are now like the lacerated parts of an old cloth, what the nation entails is a tailor to stitch these ripped parts to a beautiful textile. India needs unified and refurbished laws to deal with its health emergencies. For thriving in the domain of health, a country shall have competent laws which are updated with respect to the contemporary situations and thus be refurbished and comprehensive. This will help the country to customise their actions according to the health emergencies and tackle the situations like that of the menacing COVID-19. Although we allow a lot of interventions of the government, in times of such pandemics in order to act in the best interest of the population. But the extents of these powers are still to be formulated and there shall be proper checks and balances in the power provided to the state governments in matters concerning the population as a whole. Limiting the excessive power granted to the state and making laws more accountable and comprehensive will lead to a better management of health crisis in the legal domain. 

Further enhancing this will perceive the importance of civil society in the management of law, which is very much required as and when there is a lack of availability of a medicine then such pandemics can only be cured with following proper social distancing and other quarantine measures. And also emphasising on lockdown and curfew laws will help the government not to take an easy recourse on Section 144 of CrPC and various other robust laws in the country.

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