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India's Legal Response To Covid-19

Health is the greatest gift, contentment the greatest wealth and faithfulness the best relationship.

The pandemic has once again made us realised the importance of health. The coronavirus has grappled the world so badly that many countries have resorted to long months of Lockdown and emergencies. World Health Organization have declared Covid-19 as a pandemic.[1] The novel coronavirus has caused more than 30,892 deaths and 6,64,731 people infected with the disease (as on 29 March, 2020, 07:17 GMT).[2]

A proper system is required to tackle this deadly outbreak. The Indian Government has taken critical measures in breaking the chain of contact but apart from this, there is also a need to ramp up efforts to identify the infected and quarantine and isolate them. Hence, India majorly resorted to two main legislations- Epidemic Diseases Act, 1897 and Disaster Management Act, 2005.

The Epidemic Diseases Act, 1897

To tackle Coronavirus, the global pandemic, the union government fell back on to the colonial Epidemic Diseases Act, 1897, which specifically dealt with preventing transmission of hazardous epidemic diseases.[3] This short act was legislated by the British to control the spread of Bubonic Plague prevalent in Bombay presidency town at that time. Section 2 of the Act[4] allows the state government to take special measures to lay down regulations to prevent and contain the spread of the epidemic. In order to meet a health crisis, following the outbreak of an epidemic, the 1897 Act, gives wide-ranging powers to the states.

The states, in such emergencies, delegate some of these powers to the district magistrates in the districts. Thus, responsibility for addressing the crisis in districts rests with them.[5] The state government may also take steps to administer testing, of people travelling by road or train, including quarantine of positive cases in a hospital or temporary housing. While Section 2A[6] grants special power to central Government to curb the spread of an epidemic. It includes the detention of person travelling in ships arriving at international shores who are highly suspected to spread disease.

The Section 3 of the Act[7] provides a penalty to the offenders. State governments can either fine people or imprison them for violating rules laid down to contain the outbreak. They shall be deemed to have committed an offence punishable under Section 188 of Indian Penal Code. The concept of Quarantine though is anti-thesis to our fundamental right of movement enshrined under Art. 19(1)(d)[8]. Nevertheless, fundamental rights are not absolute and reasonable restriction have been laid down under Art. 19(2).[9] Moreover, this action is practised subject to reasonable restriction of Public interest and order. In addition to it, Section 4[10] of the Epidemic Diseases Act provides protection if anything is done in good faith.

Under this law, states can ban general meetings, restrict a number of people from assembling at a place, call upon schools and colleges to put a stop to their activity and ask offices to pursue work from home. State are empowered to sanction media outlets spreading lies or wrong information.

However, this legislation needs reconsideration owing to serious flaws. The Act is silent on the definition of epidemic, territorial boundaries and impact on human rights. The Act also lacks clarity on the regulatory system of delivery of vaccines, medications and the regulation apart from quarantine steps.[11]

The following Act was laid down when travel via sea routes was the only option. Now international travel by air is also open and is extensively used. The society today witnesses migration of people in the era of rapid industrialization, increased density of population but the act mentions only for journey via ship and has no specification for air travel.[12] The methods used in infectious outbreak prevention and management have evolved over the time.

The Epidemic Diseases Act, 1897 does not comply with the existing medical understanding of the prevention and reaction to outbreaks, but it rather represents the science and legal criteria at the time of its inception. It only focusses on isolation or quarantine steps strongly, but remains silent on solutions such as vaccination, monitoring and coordinated reaction.

There had been no emphasis on public health safety. It only emphasizes the government's strength. The Act also pays no heed to the ethical implications or values of human rights, which exist during disease responses. It would have been helpful if the Act had mentioned explicit circumstances in which states might limit people's liberty, dignity, independence rights.[13]

Disaster Management Act, 2005

The Centre government also delegated the power of home ministry to the health ministry under section 10(2)(i) and 10(2)(l)[14] of Disaster Management Act, 2005.[15] This delegation of authority was in pursuance to section 69[16] of the following Act. The health ministry being better aware of increasing cases can notify much better solution in this regard. The following Act is much better than the colonial Epidemic Diseases Act as its Section 2(d) is wide enough to cover an epidemic.

As per the following Act, to have access to surgical masks, hand sanitizers and gloves at a price that does not surpass the M.R.P., the Ministry of Health and Family Welfare instructed all State and Union Territories authorities. The two and three-layer mask along with N95 mask and sanitizers have been added as Essential goods under Essential Commodity Act, 1955. This step was taken to prevent hoarding and black marketing.[17]As per Section 54[18] of the act, the authorities can punish persons involved in giving fear or spreading a false warning regarding a catastrophe.

Aircraft (Public Health) Rules, 1954

Health officer can be named to check citizens arriving from abroad at the airport entrance.[19] He can inspect travellers and subject them to medical examination. He must also obey a quarantine duration as required by particular safeguards.[20] The officer must follow specific precautions with regard to communicable diseases.

If someone is mandated to be isolated for any period, the officer may force him to go to hospital and quarantine that person.[21] As per guidelines from Health ministry and government regarding Covid-19, authorities screened travellers who had travel journey of transit in affected nations. Government after the rapid rise in Corona cases in India has also banned international[22] as well as domestic[23] flights. Passengers are being acquainted with mandatory self-reporting. The government is sending such affected people to isolated centres, which have been set for Corona patients.[24]

Indian Penal Code

Apart from these acts and rules, the authorities can take recourse to Sections 269, 270, 271 of Indian Penal code to ensure effective enforcement of the public healthcare rules. Section 269 deals with a person who unlawfully or negligently, being aware of, spreads the infection of disease and prescribes punishment up to six months of imprisonment or fine or both.[25] Section 270 provides for imprisonment up to two years or fine or both to those malignantly do act to spread infection of disease.[26]

This is also cognisable and bailable. Section 271, criminalises disobedience of quarantine rule. It provides punishment up to six months or fine or both to those people who knowingly disobey rules framed by the Government of India.[27]

Conclusion
India has a range of regulatory frameworks in the form of acts to facilitate initiatives to improve public safety in the case of an outbreak. But, these laws are scattered and not assembled under common statute. The Epidemics Diseases Act, 1897 in itself is not practical without a robust public health legislation. Provisions of the Indian Penal Code, 1860, Drugs and Cosmetics Act of 1940 and Aircraft Rules of 1954 could be helpful to deter and regulate disease.

The need of the hour requires the amalgamation of public safety laws to efficiently track the execution of reaction to an outbreak. For successful enforcement and regulation though it is difficult yet desirable, to incorporate scattered laws under a common statute[28]. Many states have created their own rules on public safety and amended central legislation.

For instance, Himachal Pradesh Government has included mandatory vaccination in outbreak illnesses guidelines. The Act must specifically provide in form of provision, the cost and quality of treatment, ethical behaviour, and necessary precautions to take at the time of the spread of epidemics. The Public Health Emergency Response Act in Mexico can be a guiding light to incorporate needy requirements.[29] Much of the state health policy does not rely on organized medical approaches to the avoidance or management of diseases.[30] To manage disease outbreaks in India, a consolidated, detailed and realistic legal framework is required.

It would not be right to say that the central government lacked zeal and zest and was reluctant in bringing reforms. The Central Government in 1955 & 1987 developed a Model Public Health Act, but it failed to garner states support. The National Health Bill, 2009 aimed to establish a comprehensive legal structure by including essential public safety programs and obligations in public health emergency through the successful collaboration between the centre and the states.

But to out dismay this bill could not be converted into Act. In 2004, the Integrated Disease Surveillance Project (IDSP) was launched. It provided certain guidelines, which seem appropriate for addressing small-scale crises but were inadequate for major pandemic health catastrophe. A Public Health Emergency Bill had been drawn up during the first term of the UPA government.

However, the legislation underwent cold and could not see light of the day. During the first term of Modi government, Public Health (Prevention, Control and Management of Epidemics, Bio-terrorism and Disasters) Bill 2017, was introduced proposing to repeal the epidemic law of 1897. This bill provided for the quarantine of infectious people and empowered the Centre, states with greater powers under Section 3 with exception, expedient and in the benefit of the public. Furthermore, the new legislation contained a clause where anyone deliberately breaking the law must eventually pay up to one lakh and serve a two-year jail sentence.[31]

A Public Health Regulatory Agency can be set up under an epidemic similar to National Disaster Management Authority under the Disaster Management Act[32]. The following body can regularly introduce, review and update public health regulations, suggest and prioritize public safety, work with public health agencies to prepare the policy and offer strategic and science guidance. It can be a helping hand in providing preventive mechanisms for an epidemic and monitoring of pathogens.[33]

We, thus, need a concrete framework to protect the interests of the weakest section of the society whose essential services are at stake owing to the country wide lockdown. The apprehension is that these people will suffer more from hunger than corona. A comprehensive health network analysis and legal framework is the need of the hour.

End-Notes:
  1. World Health Organization, Coronavirus disease (COVID-19) Pandemic, (March 15, 2020, 16:36 PM), https://www.who.int/emergencies/diseases/novel-coronavirus-2019.
  2. Worldometer, COVID-19 CORONAVIRUS PANDEMIC, (March 26, 2020, 14:20 PM), https://www.worldometers.info/coronavirus/
  3. Prashasti Awasthi, Centre invokes ‘Epidemic Act’ and ‘Disaster Management Act’ to prevent spread of coronavirus, (March 13, 2020, 09:32 AM), https://www.thehindubusinessline.com/news/national/centre-invokes-epidemic-act-and-disaster-management-act-to-prevent-spread-of-coronavirus/article31049161.ece.
  4. The Epidemic Diseases Act, 1897, §. 2.
  5. The Epidemic Diseases Act, 1897, §. 2(2).
  6. The Epidemic Diseases Act, 1897, §. 2A.
  7. The Epidemic Diseases Act, 1897, §. 3.
  8. The Constitution of India, Art. 19(1)(d).
  9. The Constitution of India, Art. 19(2).
  10. The Epidemic Diseases Act, 1897, §. 4.
  11. Patro B.K., Tripathy J.P & Kashyap R, Epidemic diseases act 1897, India: Whether sufficient to
    Address the current challenges? Journal of Mahatma Gandhi Institute of Medical Science, (March 14, 2020, 11:19AM), http://www.jmgims.co.in/temp/JMahatmaGandhiInstMedSci182109-4304855_115728.pdf.
  12. Rakesh PS, The Epidemic Diseases Act of 1897: public health relevance in the current scenario, Vol.1 Issue 3, Indian Journal of Medical Ethics, (March 19, 2020, 15:39 PM), https://ijme.in/articles/the-epidemic-diseases-act-of-1897-public-health-relevance-in-the-current-scenario/?galley=html.
  13. Rakesh PS, The Epidemic Diseases Act of 1897: public health relevance in the current scenario, Vol.1 Issue 3, Indian Journal of Medical Ethics, (March 19, 2020, 15:39 PM), https://ijme.in/articles/the-epidemic-diseases-act-of-1897-public-health-relevance-in-the-current-scenario/?galley=html.
  14. The Disaster Management Act, 2005, §. 10(2)(i), 10(2)(l).
  15. Business Standard, Coronavirus: Govt. vests powers of Home secretary under DM Act with Health secy, (March 14, 2020, 11:19 AM), https://www.business-standard.com/article/pti-stories/coronavirus-govt-vests-powers-of-home-secretary-under-dm-act-with-health-secy-120031101709_1.html.
  16. The Disaster Management Act, 2005, §. 69.
  17. Press Information Bureau, Government invoke Disaster Management Act to ensure prices regulation and availability of Surgical and protective mask, Hand sanitizer and Gloves, (March 19, 2020, 14:23 PM), https://pib.gov.in/newsite/PrintRelease.aspx?relid=200240.
    Economic Times, Government puts masks and hand sanitisers under Essential Commodities Act, , (March 19, 2020, 16:08 PM), https://economictimes.indiatimes.com/news/politics-and-nation/government-puts-masks-and-hand-sanitisers-under-essential-commodities-act/articleshow/74616781.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst.
  18. The Disaster Management Act, 2005, §. 54.
  19. Aircraft (Public Health) Rules, 1954, R. 2(8).
  20. Aircraft (Public Health) Rules, 1954, R. 30-32.
  21. Aircraft (Public Health) Rules, 1954, R. 56.
  22. Business Today, Coronavirus outbreak: India bans international flights till March 28, (March 20, 2020, 12:41 PM), https://www.businesstoday.in/sectors/aviation/coronavirus-outbreak-india-bans-international-flights-for-a-week-from-march-22/story/398709.html.
  23. Business Line, India to ban all commercial domestic flights from midnight of March 24, (March 23, 2020, 19:41 PM), https://www.thehindubusinessline.com/economy/logistics/domestic-airlines-to-cease-operations-from-march-24-midnight/article31143152.ece.
  24. Tariq Ahmad, India: Legal Responses to Health Emergencies, (March 23, 2020, 21:11 PM), https://www.loc.gov/law/help/health-emergencies/india.php.
  25. Indian Penal Code, 1960, § 269.
  26. Indian Penal Code, 1960, § 270.
  27. Indian Penal Code, 1960, § 271.
  28. Manish Kakkar, Sukanya Hazarika, Sanjay Zodpey & K Srinath Reddy, Influenza pandemic preparedness and response: A review of legal frameworks in India, Vol.54, Issue. 1, Indian Journal of Public Health, http://www.ijph.in/article.asp?issn=0019-57X;year=2010;volume=54;issue=1;spage=11;epage=17;aulast=Kakkar
  29. Gustavo Guerro, Mexico: Legal Responses to Health Emergencies, (March 21, 2020, 23:17 PM), https://www.loc.gov/law/help/health-emergencies/mexico.php.
  30. Dr.Bismi Gopalakrishnan, Public Health Care Law Responses To Covid-19, (March 24, 2020, 18:11 PM), https://www.livelaw.in/columns/public-health-care-law-responses-to-covid-19-154266.
  31. Public Health (Prevention, Control and Management of Epidemics, Bio-terrorism and Disasters) Bill 2017, (March 20, 2020, 13:29 PM),
  32. https://www.prsindia.org/uploads/media/draft/Draft%20PHPCM%20of%20Epidemics,%20Bio-Terrorism%20and%20Disasters%20Bill,%202017.pdf
  33. The Disaster Management Act, 2005, §. 3.
  34. Rakesh PS, The Epidemic Diseases Act of 1897: public health relevance in the current scenario, Vol.1 Issue 3, Indian Journal of Medical Ethics, (March 19, 2020, 15:39 PM), https://ijme.in/articles/the-epidemic-diseases-act-of-1897-public-health-relevance-in-the-current-scenario/?galley=html.

Written By:
  1. Aniket Sachan, 3rd Year student at Dr. Ram Manohar Lohiya National Law University, Lucknow; [email protected]
  2. Sakshi Agarwal, 3rd Year student at Dr. Ram Manohar Lohiya National Law University, Lucknow; [email protected]

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