13 October 2020, NIICE Commentary 6284
Khirasindhu Saikia
The COVID-19 pandemic is considered as the most crucial global health disaster of the century and the greatest challenge that the mankind faced since the World War II. The first COVID-19 case was reported in December 2019, in Wuhan, China and the source of infection was a seafood wholesale market. World Health Organization (WHO) declared the COVID-19 pandemic as a global health emergency on 11 March 2020 and provides various guidelines for controlling the disease.
In India, the lockdown has been carried out by State governments and district authorities on the directions of the Union Ministry of Home Affairs under the Disaster Management Act 2005. The main objective of this Act is “to provide for the effective management of disasters and for matters connected therewith or incidental thereto”. Under the Act, the National Disaster Management Authority (NDMA) was set up under the leadership of the Prime Minister, and the National Executive Committee (NEA) was chaired by the Home Secretary. On 24 March 2020, the NDMA and NEA issued orders directing the Union Ministries, State governments and authorities to take effective measures to prevent the spread of COVID-19, and laid out guidelines illustrating which establishments would be closed and which services would be suspended during the lockdown period.
The DMA has a detailed command structure, with disaster management authorities at the central (NDMA), state, and district levels, to formulate disaster management plans. It also constitutes a disaster response force that receives training in disaster response protocols, sets out protections for vulnerable communities in the formulation of disaster management plans, and provides compensation to persons affected by a disaster. The fact that the Act does not mention epidemics or public health emergencies (PHEs) makes it clear that the focus of the DMA is on natural and man-made calamities, as opposed to PHEs.
The Epidemic Diseases Act enacted in the year 1897 in order to combat epidemics. The Act of 1897 empowers the state as well as central government to take special measures and prescribe relevant regulations in regard to 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 Epidemics Disease Act is a brief and limited Act, focusing on granting the government wide discretionary and reactionary powers, without (a) establishing a reporting/command structure, (b) defining the roles of the various levels of government, (c) delineating the rights and responsibilities of the public, or (d) requiring the government to take any concrete steps in preparation for an infectious disease outbreak.
The absence of a strong public health system and PHE legislation in India has resulted in extreme containment measures and coordination and communication failures, leading to the large-scale displacement of labourers, inadequate supply of personal protective equipment (PPE) to healthcare workers, misuse of police power, and patients absconding from isolation facilities. In contrast, the UK enacted the Corona Virus Act, 2020, which is a comprehensive legislation dealing with all issues connected with COVID-19 including emergency registration of healthcare professionals, temporary closure of educational institutions, audio-visual facilities for criminal proceedings, powers to restrict gatherings, and financial assistance to industry. Similarly, Singapore has passed the Infectious Diseases Regulations, 2020, which provides for issuance of stay orders which can send ‘at-risk individuals’ to a government-specified accommodation facility.
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 to tackle such type pandemics in near future.
