JURIST Guest Columnist, Assistant Professor of Law at the National Law University and Judicial Academy, discusses current public health legislation in India and suggests changes in the wake of COVID-19...
The health degree of a society’s well-being is determined by the ideas which take actual shape in the course of its daily self-constitution. In order to reform and even redeem such a society, we have to reform those defining ideas. The quality of our human life is a function of our determining ideas. Law plays a significant and structural role which is also responsible for the creation of an infinitely complex network of legal relations connecting every single individual of a society. Our individual and social behavior derives its genesis from the law, which is responsible for the development of social reality. In the present situation, COVID-19 is our reality. It is an eye-opener for all of us, as a community, as citizens and even as a nation.
In his book ‘Health Care Law,’ J. Montgomery articulated the notion of the right to health by providing two possible conceptions of health: ‘The Social Model’ and ‘The Engineering Model’. The Latter model emphasizes repairing a defective human machine. This model is not immune to challenges because one cannot ascertain the optimum level of health and identify when a particular human-machine becomes defective. This judgment is inherently subjective and medical professionals are accountable for its determination. The former model, on the other side, has a broader amplitude. International legal instrument (as declared in the Declaration of Alma Ata) is a wider approach that recognizes health as a state of complete mental, physical and social well-being and not merely absence of any infirmity or disease. This approach also identifies health as a fundamental right and that the fulfillment of the highest level of health is important from a global perspective, whose comprehension demands actions of several socio-economic sectors along with healthcare as one. On the contrary, India’s healthcare law might appear quite archaic.
A Colonial Law versus A Novel Virus
During the late 19th century, British-India was struck by the scourge of bubonic plague (also known as Bombay Plague Epidemic). The bubonic plague was responsible for the loss of thousands of human lives. From Mandvi of Bombay (presently Mumbai), the plague gradually engulfed a massive human population within short span of time. In order to combat such an epidemic, the Epidemic Diseases Act was enacted in 1897. Thereafter, India has encountered several outbreaks of infectious diseases since independence. Cholera O139, Chikungunya, H5N1 Influenza, H1N1 Influenza, Nipah outbreak, Japanese Encephalitis, and Crimean-Congo Hemorrhagic fever have emerged and even re-emerged in the recent past. The said law has been repeatedly used by states. The Act of 1897 empowers the state as well as central government to take special measures and prescribe relevant regulations as regards an epidemic disease. Section 2 of the legislation confers a discretionary power upon the state government to adopt temporary regulations to be observed by the public or by any person/class of persons as it shall deem necessary to prevent the outbreak of such epidemic. The central government’s power was however inserted by an amendment in 1920. According to section 2A of the act, the central government, concerned that any part or the entire country is threatened with an outbreak of an epidemic, may take measures and prescribe regulations. As per section 3 of the Act, anyone who violates the act shall be deemed to have committed an offense punishable under section 188 of the Indian Penal Code.
The VII Schedule of The Constitution of India enlists Public Health under State List. Therefore, a lot of discretion is with the state government to adopt, enact, and enforce public health related regulations. Conversely, the state governments are not always financially equipped to take effective measures. Ensuring essential commodities during the time of epidemic is yet another crucial challenge. In spite of these provisions, India’s existing laws fall short of meeting the challenges of a pandemic. With the dynamic and progressive era of globalization, it needs to update its public health law. For example, the modern-day challenges of international air travel, intra-state movement of migrant workers, escalation of population density of urban areas, changing pattern of food habits, use of social media, public distribution system and even climate change contribute to pandemics. Never, in the history of Independent India, has the entire country witnessed such a lockdown. Although the Epidemic Diseases Act appears quite regulatory in nature, it does not address the multi-faceted dimensions of public health issues of India.
Allied Indian Legislations vis-à-vis Public Health
India has certain public health enactments with an objective to prevent and control epidemic diseases. For example, The Live-Stock Importation Act primarily regulates the importation of livestock and livestock products which is likely to be affected by infectious and contagious disorders. The same legislation also empowers the state government (Section 4) to make rules for the detention, inspection, disinfection, or destruction of imported livestock. The Indian Ports Act under Section 6 empowers the government to make rules for the prevention of danger arising to the public health by the introduction and the spread of any infectious or contagious disease from vessels arriving at, or being in, any such port, and for the prevention of the conveyance of infection or contagion by means of any vessel sailing from any such port. The Drugs and Cosmetics Act under section 26B empowers the Central Government to regulate, restrict, or manufacture drugs in the public’s interest:
If the Central Government is satisfied that a drug is essential to meet the requirements of an emergency arising due to epidemic or natural calamities and that in the public interest, it is necessary or expedient so to do, then, that Government may, by notification in the Official Gazette, regulate or restrict the manufacture, sale or distribution of such drug.
The Ministry of Health & Family Safety of the Government of India launched an Integrated Disease Surveillance Project (IDSP) in 2004 for a period until 2010. The project was further restructured and extended. As per the project, A Central Surveillance Unit was established in Delhi along with respective State Surveillance Units and District Surveillance Units in all states and districts of the country. The prime objective of IDSP was to strengthen and maintain a decentralized laboratory-based IT enabled disease surveillance system for epidemic prone diseases to monitor disease trends and to detect and respond to outbreaks in early rising phases through a trained Rapid Response Team. The beauty of IDSP lies in its capacity building, data management and surveillance system with application of Information and Communication Technology. Albeit, these enactments are taking public health issues in consideration but our existing situation demands integration and convergence of all the relevant sectors under one legislative roof.
State-Level Regulations in regards to epidemics & COVID-2019
India has enacted quite a few state legislations for public health. For example, section 81 of The Madras Public Health Act empowers the government to make such rules as they deem fit for the treatment of persons affected with any epidemic and for preventing the spread of the same. It has even a clause on such infectious diseases that are transmissible through animals (Section 61). Section 86 of The Cochin Public Health Act empowers the government to make rules as they deem fit for the treatment of persons affected with any epidemic, endemic or even infectious disease. The Goa, Daman and Diu Public Health Act was also enacted along similar lines (Section 75).
However, with respect to COVID-19, the Indian states have adopted regulations in furtherance to Epidemic Diseases Act which are quite similar to each other. For example, The West Bengal Epidemic Disease COVID 19 Regulations mandates all government and private hospitals to have influenza-like illness and flu corners for the screening of suspected COVID-19 cases. The imposition of social distancing has been directed under the 2020 regulation. Certain geographical areas may be declared as containment zones by barring any entry and exit of people or vehicles. Similarly, under Maharashtra Regulations for Prevention and Containment of Coronavirus Disease, the State Integrated Disease Surveillance Unit (under IDSP) and District Collectors have been entrusted with certain duties and obligations to combat COVID-19. Even the Municipal Commissioner is competent to implement containment measures in Maharashtra. Delhi Coronavirus Regulations also empowers the surveillance personnel to enter any such premises to trace and detect COVID-19. Such entry by the surveillance personnel has been declared lawful under the regulation. The Indian government has also taken recourse to Disaster Management Act by declaring COVID-19 as a notified disaster.
From a pharmaceutical angle, India imports almost 80% of its raw materials from China. India has recently developed an indigenous testing kit for COVID-19. Previously it was heavily dependent upon imported testing kits. Therefore, we need to consider all these gaps while reforming the healthcare laws. In fact, international legal instruments should also take into account while adopting a comprehensive health law. In absence of a law, it is now with the governments to determine and adopt innovative measures to eliminate this pandemic. The rights of the medical professionals and healthcare personnel, promotion of investments in healthcare sector as well as medical research, the establishment of an emergency fund for pandemic crises, restrictions in travel and movement during pandemic emergency, adoption of a health information system, regulation of animal markets/trade, and alignment of fundamental rights of pandemic law are some core areas that needs immediate attention. In order to regulate the avenues of social distancing, mandatory isolation and quarantine, inclusive public health laws should also consider the thresholds as enshrined under Article 19 and Article 21 of The Constitution of India.
All of the aforesaid legislation, regulations, and initiatives are relevant in the current context, but they fail to address the ethical issue of equitable access to public healthcare. In this context, The National Health Bill of 2009 was quite progressive as it touched upon the human rights dimension of public healthcare. The bill defined epidemic as an “occurrence of cases of disease in excess of what is usually expected for a given period of time, and also includes any reference to disease outbreak.” Section 5 of the bill imposed certain obligations upon the governments to ensure comparable priority towards a right to quality health care services and the well-being of all as well as to take effective measures to prevent, treat, and control epidemics and endemic diseases. In a way, it was a very dynamic bill but unfortunately never saw the light of the day. India should consider revisiting certain aspects of the bill.
Lawrence Gostin once conceptualized public health law as, “at its core, the authority and responsibility of government to ensure the conditions for the population’s health” but it is also an individual and communitarian responsibility when there is a pandemic. Public health is related to the element of population-based services which are based on public health methodologies. Health authorities have the power to coerce individuals and businesses for community protection. It addresses a relationship between the population and state because the latter has not only power but also a duty to protect the health of the population. Once India manages to flatten the growth curve of COVID-19, it should consider refurbishing its public health law by not only reaffirming Montgomery’s ‘Social Model’ but also by adopting an overarching public health law with pandemic as one of its elements. We as humans should also refurbish our ways of life by aspiring for a better future by contributing to the pivotal process of self-creating and self-imagining.
For more on COVID-19, see our special coverage.
Chiradeep Basak is an Assistant Professor of Law at the National Law University and Judicial Academy in Assam, India.
Suggested Citation: Chiradeep Basak, India Is in Need of an Inclusive Public Healthcare Law to Combat Pandemic, JURIST – Academic Commentary, April 14, 2020, https://www.jurist.org/commentary/2020/04/chiradeep-basak-public-health-law-india/
This article was prepared for publication by Gabrielle Wast, Assistant Editor for JURIST Commentary. Please direct any questions or comments to her at firstname.lastname@example.org
Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.