11, Jan 2023 | A Legal Researcher
Unprecedented events like the outbreak of the Covid-19 pandemic test the limits of society in all aspects-socially, financially and even psychologically. It is necessary to understand what kind of long term impact such events have on society, in the medium and long term.
Many countries did not have a ready-to-cope legislation for the able handling of the pandemic and they used the existing legislations and the powers vested under the existing legislations to handle the pandemic. The pandemic required that some hospitals be taken over by the government, some private properties to be taken over for the purpose of quarantining people etc. This article looks at India’s legislative response to Covid-19 in the wake of the recent spike of the Covid-19 cases in China, again.
Why is there a need for a separate framework when acts like the Disaster Management Act and the Epidemic Diseases Act are already in place? Simply for the reasons that these acts were not enacted with the pandemic in mind, taking into consideration the encompassing behaviour in the legislative mind. Therefore, a separate and specific legislation is needed or a separate framework for laws is needed to address the specific concerns that the pandemic required us to deal with.
Article 39(a) mentions the responsibility of the State to provide security to citizens by ensuring the Right to adequate means of Livelihood. Article 39(e) mentions the State’s responsibility to ensure that “health and strength of workers, men, and women and the tender age of children are not abused.” Article 41 imposes a duty on the State to “provide public assistance in cases of unemployment, old age, sickness, and disablement.” Article 42 makes provision to “protect the health of the infant and mother by maternity benefit.” Article 47 is about “raising the level of nutrition and the standard of living of people and improving public health.
Although the Right to Health is not expressly stated/outlined as a right in the constitution, jurisprudence has evolved which treats that right to health as a part or extension of Article 21.
In Consumer Education and Resource Centre versus Union of India the supreme court had observed as follows:
“The right to health to a worker is an integral facet of meaningful right to life to have not only a meaningful existence but also robust health and vigour without which worker would lead life of misery. Lack of health denudes his livelihood. Compelling economic necessity to work in an industry exposed to health hazards due to indigence to bread-winning to himself and his dependents, should not be at the cost of the health and vigour of the workman. Facilities and opportunities, as enjoined in Article 38, should be provided to protect the health of the workman.”
In response to the multiple physical attacks on already stressed and overworked frontline health workers during the pandemic, the government amended the Epidemic Diseases Act (EDA), 1897 issuing an ordinance amending section 3 of the EDA. If anyone causes damage or loss to the property, then they may be punished with “imprisonment for a term of 3 months to 5 years and with a fine of Rs. 50,000/- to Rs. 200,000/-.” In case of violence and physical attack on health care workers, offenders can be imprisoned “for a term of 6 months to 7 years and with a fine of Rs. 100,000/- to Rs. 500,000/.” In addition, “the offender shall also be liable to pay compensation to the victim and twice the fair market value for damage of property.”
Although some states like Bihar and Madhya Pradesh have enacted public health law regime under the EDA, it is not the case with all states within the Indian union However, since EDA in itself is a very limited legislation, it is important to have a comprehensive health policy that would deal with the such controlled outbreaks.
The second legislation in place is the Disaster Management Act, 2005 which was used widely, due to its existing wide administrative and legal machinery to deal with nationwide lockdowns etc. A pandemic does not actually fall under the definition of ‘Disaster’ under the act. Some may argue that pandemic is also a disaster and it is fair to use the Disaster Management Act. However, there is no material gain out of that interpretation. The act does not have sufficient provisions for a health disaster that has various other provisions such as contact tracing, lockdowns, economic benefits to the people, food security for prolonged periods of time etc.
In 2017, under the Modi government’s first term, the Public Health (Prevention, Control, and Management of Epidemics, Bio‐fear based oppression, and Disasters) Bill 2017 was introduced, The 2017 bill clearly defines epidemics, isolation, quarantine, public health emergency, and social distancing. Section 3 of the bill gives powers to state/UT, district, and local authorities, whereas section 4 of the bill defines powers of the Central Government in giving directions. Penalties are also high when compared to other acts and bills. Section 14 (1) of the bill repeals the EDA. This legislation however did not materialise due to objection of many states with the Centre treading on Constitutional Federal principles, particularly with health being a state subject. Given that the NDA government is also in power most of the states today, it is yet to be seen if the government will introduce at least a version of the bill which is more guiding (co-operative)rather than directing of the states.
Some countries like New Zealand did pass Covid-19 specific legislation with everything from testing to vaccination and economic handouts were placed in the legislation. However, this too, was criticised for the way it was rushed through to be enacted. However, an all encompassing legislation is needed for addressing specific emergencies such as the Covid-19 and it is indeed disappointing that India has not even taken a step in that direction let alone enacting a public health law.
1995 SCC (3) 42
 COVID-19 Public Health Response Act 2020