Does India have a robust legal system wherein law enforcement agencies can enforce legal discipline at the time of a health crisis such as coronavirus pandemic? One may become sceptical looking at the crowd assembled at Anand Vihar terminal in Delhi. We not only lack an action plan to tackle the COVID-19 spread, but we are utterly devoid of the health-based legal system to keep the panic at bay.
Here are three types of problems which are quite visible:
1. Slackness of state authorities to prevent such mass exodus of migrant workers leading to chances increased risk of virus spread.
2. Blatantly flouting quarantine rules Immaturity of people who have moved from high-risk countries like the UK, USA, Italy or UAE.
3. Wrong information being shared through various online medium.
4. Lack of centre-state coordination and also state to state coordination to help in the migration of people.
The Anand Vihar scene yesterday and today is scary and is just one of an incident, but migrant workers and their families were compelled to leave the cities since their source of income suffered due to the lockdown. This situation was also caused by a lack of empathy by landlords and lack of government information about the help they are willing to give.
But there are several cases of people who are blatantly violating lockdown rules. Such is the case of Singer Kanika Kapoor, who tested positive for COVID-19 after her journey to London and had reportedly skipped the mandatory 14-day quarantine, creating a significant risk. She then met high-profile people and also attended parties. Even some doctors in Jodhpur with travel history of the UAE did not practice self-quarantine, Indian boxer Mary Kom also broke quarantine protocol. So, even though UP CM ordered FIR against Kanika Kapoor, the point in case is, what does the law say in India about such health crisis.
Who is responsible?
As it seems, despite police efforts, the quarantine requirement appears to be difficult for many Indians. Could this be because we are in the habit of living in a crowd as a community and hence becomes a more significant violation as well? Or are we just too independent of bothering about law and order, about health risks?
One can say that we are somewhat complacent in our approach towards coronavirus as the infection can be traced to overseas sources. And it is primarily because of this reason that the increase in the infection can be mainly due to the people who failed to observe the mandatory quarantine.
What steps have been taken by state governments for the migrant workers?
1. Nearly one lakh people, who arrived in the state, have been asked by the Uttar Pradesh government to remain in home quarantine while instructions in this regard have been conveyed to the village pradhans.
2. Similarly, Bihar Chief Minister Nitish Kumar has also issued a similar order, asking authorities to set-up relief camps for the migrant workers. In his order, the Bihar Chief Minister said that the migrants would be allowed to go home after the 14-day mandatory quarantine period.
The laws to enforce compulsory quarantine while an individual is asymptomatic does not exist in India and probably may result in a steep rise in infections. This leads to an important point – Public healthcare laws in India fall short of meeting the needs of an epidemic situation. We are much behind in the public healthcare laws, and much is required to be done in India to improve the healthy lifestyle of Indians.
Healthcare Laws in India
1. India is a member and has agreed to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The Supreme Court held that Article 21 of the Constitution of India concerning human rights has to be interpreted in conformity with international law. Further, Article 25  of the Universal Declaration of Human Rights and Article 7 (b) of the International Covenant on Economic, Social and Cultural Rights have been cited by the Supreme Court while upholding the right to health by a worker.
2. The Constitution of India incorporates requirements guaranteeing everyone’s right to the highest reasonable standard of physical and mental health. Article 21 of the Constitution guarantees protection of life and personal liberty to every citizen. The Supreme Court of India has held that the right to live with human dignity, enshrined in Article 21, derives from the directive principles of state policy and therefore includes the protection of health. Further, it has also been held that the right to health is integral to the right to life, and the government has a constitutional obligation to provide health facilities.
3. Failure of a government hospital to provide a patient, timely medical treatment results in the violation of the patient’s right to life. Similarly, the Court has upheld the state’s obligation to maintain health services. Several Public interest petitions (PIL) have also been filed under Article 21 in response to violations of the right to health, and the Supreme Court has responded well to such petitions.
4. There is a Disaster Management Act, 2005, however the primary law its resorts to is the 123-year old The Epidemic Diseases Act, 1897 (EDA), that govern healthcare emergencies in India. Disaster management is quite vast and covers too many things. The act – EDA was prepared during British times and was enacted to fight the plague in Mumbai (erstwhile Bombay) comprises of four sections spread over just three pages. Practically, it is much away from the current ground realities. The recent laws cover more frauds and forensic situations.
5. Public health features in the state list under the Seventh Schedule of the Constitution. The Centre can only advise states to invoke the laws and regulations and cannot enforce it. The power which the Central Govt has is minimal, and ultimately its the discretion of the state government to take steps by framing suitable regulations. Not all states have framed regulations to contain the pandemic though whosoever have framed are all very specific.
6. The Indian government also declared the disease as a “notified disaster” under the Disaster Management Act, 2005 the fact remains that India does not have dedicated legislation for a pandemic situation. An overarching law governing public healthcare is a glaring gap in India’s fight against the COVID-19 pandemic.
7. The critical point which needs to be covered in the new laws which are required are:
a) Define the rights of healthcare personnel – what are their rights though they have extensive duties
b) Define the travel restrictions – when, how, where to whom, how to treat emergency – all need answers.
c) Define the privacy rights – privacy to medical information about a person
d) Funds required to meet these crises
Even though India is a signatory to the WHO’s International Health Regulations (IHR), several gaps need to be plugged in the Indian domestic laws.
Comparatively, the world is much better prepared – some countries have laid great emphasis on strengthening their public healthcare laws to prepare themselves for such pandemics. We can take a cue from them.
All private hospitals have been nationalised in the wake of the pandemic. Fourth-year medical students in Spain have been asked to help the country’s health services. While such a drastic measure may not take in India, experts speculate about guidelines for public-private partnerships in the medical field.
Section 51 of their constitution provides the Federal government with legislative powers to quarantine. An overarching law called the National Health Security Act and Agreement has been put in place to abide by Australia’s obligations toward the IHR. The Australian government’s 2011 National Health Emergency Response arrangements also highlight how the government will respond to public health emergencies.
3. United States
The Department of Health and Human Services (HHS) has laid down specific guidelines to assist states during health emergencies and prevent the spread of communicable diseases. The Robert T Stafford Act – 1988 allowed President Donald Trump to invoke an emergency unilaterally. The HHS secretary can make grants and conduct investigations into the cause, treatment and prevention. Under the Federal Food, Drug and Cosmetic Act (amended in 2019), the HHS secretary can rationalise a disaster and use authorisation of medical countermeasures, whereby unapproved drugs, vaccines, or other countermeasures can also be used in times of emergency. Such laws or departments do not exist in India. The USA recently signed a new act – Coronavirus Aid, Relief, and Economic Security or “CARES” Act – 2020, giving a relief of $ 2.2 trillion through the act.
4. European Union (EU)
EU Decision 1082/13 (originated in 2013) is the principal legal instrument for threats to health. They endorse compliance with the IHR. Both the IHR and Decision 1082/13 require signatory states to develop national plans for pandemic preparedness.
Many countries have plans in place, and these plans even include taking measures such as rationing of resources, enforced isolation or quarantine, or seizure of goods and property. The WHO and the EU also encourage the use of legal frameworks to support those plans.
In India, Prime Minister Modi has been taking significant steps to control this pandemic however our legal system needs to be strengthened to ensure things can happen in a better way and are more realistic and updated as well.