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Need For Reforms In The Health Legislation of India

Written by: Vedant Sumant, Student, Gujrat National Law Unversity, Gandhi Nagar


The COVID-19 public health emergency affords the law makers a chance to update the country’s laws which they must avail if they wish to bring back a sense of normalcy while also helping to get the economy back on track. COVID- 19 is the shakedown that was needed for the Indian legislature, so as to repeal the current EDA, 1897 and bring into existence a law that is clear, unambiguous and tough to meet the dynamic needs of public health. The new promulgation must be specific in its scope and should act as a central law while giving precedence to specific laws thus helping to resolve and regulate the affairs of the state with ease. The laws relating to response measures required in an epidemic can be collated under an umbrella law that would help in waging wars against events like these in the future.


Introduction

The CDC refers to an Epidemic as an event which occurs “occurs when an agent and susceptible hosts are present in adequate numbers, and the agent can be effectively conveyed from a source to the susceptible hosts. More specifically, an epidemic may result from:

  • Recent increase in amount or virulence of the agent,

  • Recent introduction of the agent into a setting where it has not been before,

  • Enhanced mode of transmission leading to exposure of susceptible persons,

  • Change in the susceptibility of the host response to the agent, and/or

  • Factors increasing host exposure or involving introduction through new portals of entry.”[1]

India has been afflicted with epidemics multiples times in the recent past like on 7.08.2018 Nipah virus, 26.05.2017 Zika virus infection, 17.10.2006 Chikungunya, 23.02.2006 Avian influenza, 13.09.2005 Japanese Encephalitis, 14.06.2005 Meningococcal disease, 12.11.2003 Dengue fever, 14.05.2003 Severe Acute Respiratory Syndrome (SARS), 14.08.2001 Cholera etc[2]. The Covid-19 crisis started in December and currently the case tally rests at 467882 active cases, 885576 discharged cases and 32063 deaths according to The MoHFW as of 27.07.2020, 03:00 IST[3].


To contain the increasing number of cases of Covid-19 government invoked The Epidemic Diseases Act, 1897. Further, the Disaster Management Act, 2005 was invoked in conjunction with EDA, 1897 to enforce the 21 day lockdown that started in mid-march.


Dealing With A Novel Situation With Archaic Legislations

The EDA Act, 1897[4] is a remnant of the colonial era. It empowers the state government to have discretionary power to prescribe any such temporary regulations that are to be observed by the people or class of persons to prevent the outbreak of the dangerous epidemic disease[5]. It further arms the Central Government to take measures and prescribe guidelines if it appears to the Central Government that Bharat or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease and that the ordinary provisions of the law for the time being in force are insufficient to prevent the outbreak of such disease or its spread[6]. The Act punishes its violators under s.188 of IPC[7]. It was amended by an ordinance similar to the ongoing epidemic, highlighting the fact that any form of harassment of healthcare service personnel and destruction of property will not be tolerated and the perpetrator will be held liable. The Central Government has also been afforded a role in conjunction with the State Governments to take steps in furtherance to avert the break of an epidemic in Bharat. In addition, the scope of inspection of vessels arriving or leaving the country has been enlarged to include road, rail, sea and air vessels.

Further to tackle this situation, The Disaster Management Act, 2005[8] had been invoked in tandem with EDA,1897 by the Government. The Government also ordered a curfew underpinned by a 21-day lockdown. However, it must be taken into consideration that the Act was never designed to cater to health emergencies[9]. It is evident from the definition of disaster in S.2(d) which states that “disaster” means a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man-made 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.”[10] The section aforementioned, does not explicitly include within its meaning health disasters, except if the provision is interpreted without any boundaries either qua purpose or the provisions of the act itself. It further allows the Government to get access to the National Disaster Response Fund[11], the State Disaster Response Fund and the District Disaster Response Fund[12]. The Act also provides that anyone found obstructing any officer or employee from performing their duty will be imprisoned for a term which may extend to one year or pay fine or both. Further, if such an Act of obstruction leads to loss of lives or imminent danger, then the person can be jailed for up to two years[13]. However, it must be taken into consideration that the primary objective of DMA, 2005 is to prohibit gathering and not tackle disease outbreaks like the one that Bharat is currently dealing with. Along with these two Acts, several state governments in order to control crowding and prevent the spread of the virus are also invoking s. 144[14] of the IPC which prohibits a gathering of four or more people in a particular area.


The Epidemic Diseases Act is also silent on human rights principles that come into play during the response to an epidemic. It does not clearly define the powers of government with respect to restricting the autonomy, privacy and property rights of the people[15]. The act of closing down businesses which is a fundamental right to trade is a classic example of how the government can make the modified legislation more specific and unambiguous. Apart from talking about the quarantine measures the Act is silent on the legal superstructure of availability and distribution of vaccine once the research results into an answer to the problem of this epidemic. There is also a need of adducing provisions bringing clarity with respect to the education sector for online classes, exams or reimbursement policies.


The ordinance protecting the healthcare workers against harassment and abuse remains operative only for a period of 6 months and a complete overhaul of the act will be a better tool to deal with the current predicament and guide the country towards resolution of the dilemma than the ordinance soo promulgated but it must be taken into account that it will be unwise to merely label the ordinance as a temporary gesture. It must be viewed through the lenses of the current predicament we are in and the ordinance was the best case scenario policy solution that the sovereign could come up with. The EDA law was promulgated when the definition of disease was restrictive and not extensive therefore the law fails to define the words “dangerous”, “infectious”, or “contagious diseases”, let alone an “epidemic.”[16]

The punishment provided in the EDA Ordinance 2020[17] of imprisonment raging from 3 months to 5 years with fine ranging from 50,000 to 2 lacs needs to be relooked at as it does not fulfil to provide justice for the victims of the individuals in breach of the act.


The most important and urgent policy decision which the executive must take is to apply its powers of “lockdown”, tailor-made to the individual zones so ear-marked by the central government. The work of classifying the country into various zones depending upon the number of active corona cases found in those areas has already been done. However, the lockdown must be effectuated in a strict/loose manner depending upon the seriousness of the category that area has been put in. The lack of an Interpretative provision leaves the Act open to abuse and misinterpretation as there are no defined parameters to decide as to what can be called as a “vicious epidemic disease”. The EDA, 1897 is in its essence regulatory in nature. The Act emphasises the power of the government, but is silent on the rights of citizens in such a period of emergency.


The drafting of such an enactment must be precise rather than being an umbrella legislation as Covid-19 has affected all aspects of life of this nation’s citizenry but the policy so drafted instead of covering each and every field so affected per se must focus more on assigning roles and functions according to the correct bureaucratic hierarchy thus providing enough leg room for executive to tailor make the decisions suited for the situation leading right from the grass root level of Panchayats right till the PMO and the Cabinet. Any suggestion to involve all the fields in this suggested new promulgation by making it a comprehensive legislation are impractical which lack vision.


The drafting of a new legislation by choosing a comprehensive method, by taking into consideration all the above-mentioned drawbacks, is required to tackle such outbreaks in future. Merely replacing one law with another will not do the trick without a much needed surveillance network like the Aarogya Setu app[18], strong public health systems and epidemiologists providing organizational information and policy support. The proposed 2017 Public Health Bill[19], which is aimed at recording epidemics, disasters and activities related to bio-terrorism, also aims to reform the current system. The bill would have repealed the EDA, 1897, but unfortunately it has not yet been presented in the Parliament, and it is still being scrutinised by the law ministry.


Conclusion

In order to draft conceive create and construct a new and more meaningful legislation all the stakeholders having privity such as national level trade organizations like FICCI, trade unions, supply change management cos educational institutes, health industry, bankers, people from the legal fraternity and bodies concerned with unorganized labour/workforce including police all these limbs of the state should be involved to create the life in law. There have been several articles on the analysis of this and allied Acts which merely propound enacting a new comprehensive Act but what the Act really needs is a structure to stand on and that can be provided only if real time data can be made available to the policy makers directly from the workers who will be the recipient of the consequences of such an act. Enacting a new law by itself is like providing crutches to a disabled man rather than performing surgery to enable him to walk again.

If you want everyone to respect the law you must make the law respectable. - Louis D. Brandeis

References [1]Deputy Director for Public Health Science and Surveillance available at https://www.cdc.gov/csels/dsepd/ss1978/lesson1/section11.html. [2]Director WHO available at https://www.who.int/csr/don/archive/country/ind/en/. [3] Active Covid- 19 cases available at https://www.mohfw.gov.in. [4] The Epidemic Diseases Act, 1897,(Act 3 of 1897). [5] S.2, Ibid. [6] S.2A, Ibid. [7] S.3, Ibid. [8] The Disaster Management Act, 2005, (Act No. 53 of 2005). [9] Ordinance amending EDA available at https://pib.gov.in [10] S..2(d), supra 8. [11] S.14-24, ibid. [12] S. 25-24, ibid. [13] S. 51-60, ibid. [14] The Indian Penal Code (Act No. 45 OF 1860.) [15] India’s fight against health emergencies: In search of a legal architecture by Manish Tewari available at https://www.orfonline.org. [16] Binod K. Patro, Jaya Prasad Tripathy, et. al.(eds.), “Epidemic Diseases Act, 1897, India: Whether sufficient to address current challenges?” 8 JMGIMS (2013) [17]The Epidemic Diseases (Amendment) Ordinance, 2020 (No. 5 OF 2020.) [18] Available at https://www.mygov.in/aarogya-setu-app/. [19] No. T-180 14/3 '2004/PH Government of India Ministry of Health & Family Welfare PH Division.

Opinions expressed in the blogs are the sole responsibility of the author(s) and do not necessarily reflect the views of The L Word Blog

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