Srishti Baniyal, a third year law student of University of Allahabad analyzes the legal competency of India to combat the Epidemic situations and exigency to introduce reforms.
History reveals that devastations don’t happen twice, and if they do, they will occur a third time again. Whether it be Bubonic plague of Justinian in 541 AD with about 25 to 100 million deaths, Black death fever of Europe, Asia, and Africa in 1346-1356 AD, Spanish flu of 1918-20 or COVID 19 in the present; nature has tested human endeavor time and again. Being known for our robust enthusiasm and most evolving nature, we are now able to fight such havocs more efficiently with the advancement in medical science and stringent laws.
It was after the Second World War when global concerns were raised to combat natural havocs while keeping pace with human rights. World Health Organization (WHO) was established in 1946 to attain the standard of health as a fundamental right of every human being. In 1948, the Universal Declaration of Human Rights (UDHR) came into force with an attempt to create legal obligations on the member states to attain public health standards by the formation of the domestic laws.
In the Indian context, Epidemic Disease Act,1897 was enacted by the colonial government seeing the upward trajectory of deaths due to bubonic plague scourge in Bombay in 19th century with 1.3 million deaths in a single year because of community tenements and chawl system of dwellings in Bombay defying the quarantine rules. Section 2 and 2A of the above Act grants power to state and central governments to empower any person to take measures and prescribe regulations for the time being by means of a public notice during the outbreak of any dangerous epidemic to prevent the same from the spread. Under section 3, disobedience by any person was made punishable as per section 188 of I.P.C. 1860, with the imprisonment of either description from one month to six months. Moreover, persons acting in good faith were exempted from the legal proceedings under section 4 of the Act.
Constitution of India, with its enforcement in 1950 enforced public health provisions in fundamental rights and directive principles. Taking it as the basis, Supreme Court in Consumer Education & Resource Centre v.UOI was of the view that the right to health is inherent in Article 21 of the Constitution, guaranteeing the right to life and personal liberty. Ascertaining the public health risk, the 7th schedule of the Indian Constitution featured a ‘public health’ in-state list giving more discretionary powers to state governments and advisory powers to the government of India.
Health emergency and strict laws:
Health emergency is a concept to be implemented for the first time in India after the WHO on 30th March 2020 declared COVID outbreak as a public health emergency. With no mention of the same in Indian Constitution, the states preferred earlier to rely on penal provisions than on any stringent law and therefore, whether it was Cholera epidemic of Kolkata, Surat’s plague or Swine flu outbreak, states used section 144 CrPC,1973 to restrict public gathering, section 269 IPC,1860 to penalize negligent patients with minimum six months imprisonment or fine or both and section 270 IPC,1860 to punish disobedience of quarantine laws. Covid outbreak invoked health emergency in India not on the grounds of any emergency provision but by relying on the term ‘internal disturbance’ subsisting in Article 355 of Indian Constitution empowering the Central government to protect states and union territories from any internal disturbance caused by natural calamity including pandemic by taking all measures necessary.
Stringent laws and humanitarian crisis:
Confronting COVID 19 catastrophe triggers a widespread humanitarian crisis. Restricting freedom of movement, depriving migrant workers their right to shelter, right to food on-ground reality, rupturing right to assemble, freedom of expression, right to a speedy trial are few legal fundamental rights suspension amidst the pandemic. This is not the first time when humanitarian rights fight against the attempt to prevent the spread of infectious disease. With the H.I.V./AIDs epidemic in the 1990s, solitary confinement was measure resorted to but was termed as a serious infringement of basic human rights of personal liberty. The Apex court established that liberty and public health are not in conflict rather in accord with each other. However, in order to combat exceptional circumstances, isolated detentions are justifiable grounds on which public health can be given importance over individual rights.
The legal scope of improvement:
India is being applauded by the global community for timely recognizing the havoc and being able to clutch the crisis to some extent for such a long span of time because of effective leadership, diligent administration and devoted medical staff and health workers. However, the pandemic is gone nowhere, and ample scope of improvement lies. Presence of The Disaster Management Act, 2005 to combat man-made and natural disasters and National Disaster Management guidelines, 2008 are not sufficient. Moreover, the archaic Epidemic Act shows ample lacunae as it has no interpretation clause to define terms like ‘dangerous,’ ‘infectious,’ ‘contagious disease.’ Neither states when to call a crisis as an epidemic. With the aim of protecting government officials acting under Act, it forgets to mention measures for dissemination of drugs, quarantine steps, equal healthcare services to all safety and security of healthcare professionals and other workers, etc. The need to adapt existing laws to contemporary requirements was felt in 2017 with the proposal of Public Health (Prevention, Control, and Management of the epidemic, bioterrorism, and disasters) Bill, but it lapsed in Parliamentary session, and the need to fill the exposed glaring gaps remained unfulfilled.
Analyzing foreign strategy:
The need of the hour is to learn from countries which have succeeded in controlling the pathogen. New Zealand tops the list as it records zero cases of COVID now. Timely closing of schools, bars, churches, public transport showed the best response to the pandemic. South Korea tops in screening maximum people than any other country with about ten thousand screenings per day. With the vigilant approach, borders were sealed, the local government strengthened. Singapore government made direct contact with masses and removed unwarranted middlemen services by making Ministry of Transport responsible for providing all sorts of medical supplies; Ministry of Communication for rapidly sharing authentic information regarding the epidemic and Ministry of Education ready with online study material for students. Likewise, Japan, Vietnam, Taiwan are also among countries to move towards the goal of flattening the curve where even the non-mandatory guidelines were also performed by the citizens and showed how general masses are directly responsible for fighting the exigency.
Labour laws amidst crisis:
On the other front, with the upcoming recession amidst the pandemic, it is equally pertinent to balance the wheels of strategically planned economic development. A financial aid to MSMEs is being given in tranches, constant meetings are being held with FICCI, CII, ASSOCHAM to catalyze economy and four labor laws have been given exemption in various states by means of ordinances. However, it is to be kept in mind that such blatant suspension of labor laws do not hamper crucial humanitarian principles.
The conclusion can be drawn that no matter what pros and cons shine from the template of laws invoked in times of this pandemic, it is necessary to abide by the precautionary measures and isolation procedures. Being productive while being constrained to our homes is the best way to combat the tough times.
Srishti Baniyal is a third year law student from University of Allahabad.
Section 269, 270 and 271 of Indian Penal Code, 1860
1995 S.C.C. (3)
IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.