The Rising Need to Revamp Health Laws in Post-Covid India

By Prakriti Singh

INTRODUCTION

The COVID-19 pandemic was nothing less than a predicament for India. This crisis permeated to various sectors of India. Amidst a crisis, legal frameworks play a crucial role as they augment a government’s response to public health emergencies and also the rights and duties of citizens. COVID-19 underscored the deficiencies in the existing Indian legal frameworks, specially, in the health laws. The ambiguities in the Epidemic Diseases Act, 1897 portend the abuse of power by the executive. The National Disaster Management Act, 2005 originally envisaged as a disaster management law, was utilized to control the outbreak of the virus. Under the garb of prioritizing public health, several unreasonable restrictions were placed upon the rights of the citizens. This blog will study the lacunae in the Epidemic Diseases Act and the National Disaster Management Act and the conflict between public health and liberties amidst the crisis.

A RELIC OF COLONIAL ERA

EPIDEMIC DISEASES ACT, 1897

In order to contain the COVID-19, Indian government resorted to the Epidemic Diseases Act, 1897. The Act was formulated by a regime responsible for the death of about 12-15 million individuals due to cholera in 1918. The 123-year old law has been the centre of opprobrium at various instances. Historian David Arnold has termed the Act as ‘one of the most draconian pieces of sanitary legislation ever adopted in colonial India’ and Myron Echenberg in his book observed that ‘the potential for abuse was enormous’. The Act has proved to be inadequate and archaic on several parameters.

The Preamble of the Act terms the Act as “An Act to provide for the better prevention of the spread of Dangerous Epidemic Diseases”. However, the Act fails to provide any precise and explicit definition of the terms “dangerous” and “epidemic”. There is an absence of any criterion to label a disease as dangerous or epidemic. This open-ended character of the act can create impediments in estimating the scale of spread within the country and age groups, the severity of the disease, ability to spread internationally, non-availability of basic precautionary materials, unknown cure, etc. This subjectivity can even hinder the appropriate response to a disease. For instance, the Chinese government and the WHO were accused of quelling the claims of novel coronavirus in the initial stages by refusing to declare it either an epidemic or a pandemic at the appropriate stage.

Section 2 of the Act empowers the state governments to impose any regulations, as may be necessary, “if the ordinary provisions of law are insufficient” to curb the outbreak of a disease. The terms “necessary” and “insufficient” are not adequately defined under the act, making the act vague. In Shreya Singhal v. Union of India, one of the grounds for holding the concerned law null and void was “vagueness”. The Bench held that vague laws violate the principle of freedom, as enshrined under the Indian Constitution. The probability of misuse present in a vague law goes against the principle of due process of law.

Enacted in the colonial era, the Act is far away from the notions of parliamentary accountability, human rights and civil liberties. No parliamentary oversight or ratification is required under the Act. Even the proclamation of National Emergency requires the ratification of the Parliament. This Act, enacted in the pre- constitutional era, does not lay down an adequate system of checks and balances. The Act lays emphasis on the powers of the government, but is silent upon the duties of the government. There is no dissemination of fundamental rights that needs to be guaranteed to the citizens, even while undertaking emergency measures amidst an epidemic.

The Act has been utilized for implementing surveillance and monitoring. There is a blanket protection available to the public servants functioning under it. In K.S. Puttaswamy v. Union of India, Right to Privacy was held to be an intrinsic of the Article 21 of the Indian Constitution. The Court laid down a few tests for limiting the discretion of the state while impinging on the right of privacy, which included procedural guarantees against abuse of interference that may be necessary for a legitimate aim. However, the Epidemic Diseases Act does not provide any safeguards against the misuse of power by the state in order to impose unreasonable restrictions on privacy. The Act is not in accordance with the doctrine of proportionality which is to be followed while restricting the right to privacy.

The Epidemic Diseases Act, 1897 has been substantially amended by the Epidemic Diseases (Amendment) Act, 2020. The amendment criminalizes the acts of violence against healthcare personnel. However, it fails to rectify the opacity, the ambiguity and the arbitrariness prevalent in the Act.

DISASTER ACT FOR A PANDEMIC

NATIONAL DISASTER MANAGEMENT ACT, 2005

The Ministry of Home Affairs declared COVID-19 as a “notified disaster” under the National Disaster Management Act, 2005. There was widespread criticism that the Act is inadequate and rudimentary for handling a health emergency. This opprobrium can be justified on the following parameters. 

According to Section 2(d) of the Act, a “disaster” means “a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or manmade causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area.” The ambit of this definition was considered inclusive of health emergencies such as COVID- 19. However, the question is whether such basic definition is sufficient to deal with a disease which disrupted even the most advanced countries of the world?

Moreover, this Act seems to provide another push to the already crumbling citadel of constitutional federalism. Section 10 of the Act empowers the National Disaster Management Authority to issue binding directions to the state governments, in case of a disaster. This Act has been utilized to centralize the sphere of operations whereas, under the Seventh Schedule of the Indian Constitution, Public Health comes under the State List. Additionally, this Act was meant to be used when a state government was unable to cope with a natural disaster. It was never envisaged as a means of exercising control over the already functional state governments. 

CONCLUSION

The vagueness and incompleteness implicit in the existing health laws of India do leave a room for misuse of powers by the government, as unbridled authority is offered and the existing system of checks and balances is also bypassed. This has resulted in gross violations of the rights and liberties guaranteed by the Indian Constitution. As India is a democratic nation, all possible efforts should be made in order to prevent the arbitrary exercise of authority by the government. A revamped law providing effective system of checks against the exercise of government authority is the need of the hour. One such proposed law was the National Health Bill of 2009. However, its future is highly uncertain. 

Moreover, in 2017, The Union Ministry of Health And Family Welfare had prepared a comprehensive Public Health (Prevention, Control and Management of epidemics, bio-terrorism, and disasters) Bill to address the loopholes in the current laws including Epidemic Diseases Act. However, the same has, not been tabled in the Parliament, till date.

Such proposed legal frameworks should be adequately worked upon in order to arrive at a holistic legal framework which will provide guidelines and directions to deal with health disasters in the future. Additionally, an independent body, comprising of medical professionals and legal professionals should be constituted to provide effective solutions to deal with such emergencies.

(Prakriti Singh is the first year student of law at HNLU Raipur)