India needs a new epidemic control and management law – analysis
India’s response to the coronavirus disease pandemic (Covid-19) so far has been primarily affected by three different laws: the Epidemic Diseases Act of 1897 (EDA); the Disaster Management Act, 2005 (DMA); and the Indian Penal Code, 1860 (IPC). Following the declaration of the pandemic as a “notified disaster,” the National Executive Committee of the National Disaster Management Authority (NDMA), established under the DMA, has been imposing graduated blockades and issuing periodic guidelines to states to do meet the locks. Simultaneously, both the central and state governments have turned to EDA to address the health aspect of this disaster. However, people who violate the blocking orders are being charged under sections 188, 269 and 270 of the IPC.
The use of an ad-hoc legal architecture with a multiplicity of statues has resulted in an irregular response against the epidemic in several areas.
The archaic three-page, four-section EDA does not define what constitutes a “dangerous epidemic disease.” It gives the executive unbridled power to respond to the disease by enacting ordinances or regulations, but without due attention to the social and reputational positions of those affected by the pandemic.
Similarly, DMA, approved as an immediate response to the 2004 tsunami, is largely framed for effective preparedness, mitigation, and management of a natural or man-made calamity, accident, or catastrophe, such as tsunamis, earthquakes, and cyclones. These events are typically geographically localized catastrophic events, disrupting normal life for a few hours or days, but unlike a public health epidemic, they do not last long. Unlike natural disasters, the physical evacuation of people from an affected area to a relatively safe area is not an option during a pandemic due to the probability of the infection spreading.
Aware of the lack of an appropriate epidemic control and management law, in 2017, the Union’s Ministry of Health and Family Welfare prepared a comprehensive public health bill (prevention, control and management of epidemics, bio-terrorism and disasters) to address gaps in current laws, including EDA. However, the bill was not presented in Parliament. A focus paper on a new Public Health Law proposed by a 2012 task force is also gathering dust.
A new and robust epidemic law must take into account the experiences and lessons learned from the current crisis.
First, the Law must establish an authority or body similar to NDMA, which has representation from both the Center and the states, responsible for the design and implementation of well-coordinated surveillance, identification, follow-up of contacts, quarantine, isolation, testing strategy and treatment. . The Act should also empower the agency to plan a comprehensive and reasoned closure strategy, taking into account interruptions in supply lines, essential and non-essential services, human migration, humanitarian and food aid, and all non-health services and services. .
Second, the Act should have provisions that allow for multi-sectoral emergency financial support and relief measures to local authorities, farmers, businesses and healthcare providers, and animal care and guarantees for livelihoods.
Third, the Act must provide adequate autonomy for states to design and enforce responses based on their local assessments, such as preparing health facilities to respond to various challenges at the district, block, and gram panchayat levels. For example, the Odisha government’s granting of collector powers to Sarpanches to enforce the isolation and quarantine of migrant workers returning home from the outside.
Fourth, the Law must include a more robust disincentive scheme, which must include a combination of civil and criminal sanctions for violation of the authorities’ orders. Currently, it only provides criminal penalties. This should also include strict punitive measures against people who abuse or mistreat frontline workers, such as doctors, nurses, paramedics, village-level health workers, sanitation and police personnel, accompanied, of course, by sufficient guarantees against excessive use or misuse.
Fifth, the Law must also have provisions to protect the rights of all citizens, such as privacy. The balance between public health and the right to privacy should not be sacrificed on the altar of an emergency response. Any government response that involves surveillance or collection of personal data from individuals must also have adequate checks and balances to ensure the proportionality and reasonableness of data collection. It should have provisions for the anonymity of personal data, the rigorous maintenance of records, the non-disclosure of personal data and its deletion when the purpose of the collection has been exhausted.
Most importantly, there must be a clear definition of an “epidemic disease” to ensure a strict and clear boundary between the operation of an emergency statute and the resumption of ordinary laws.
Extraordinary times like the coronavirus pandemic require extraordinary measures. But even in times of emergency, the laws should not be silent. Public confidence is strengthened only when governments adopt adequate transparency and accountability measures so that the public itself can judge the proportionality and reasonableness of government actions.
Amar Patnaik is a Member of Parliament, Rajya Sabha of Odisha, a former CAG official, with a Master in Public Management from the Lee Kuan Yew School of Public Policy, Singapore and the Kennedy School of Government, Harvard University, an academic with a doctorate in administration
Nikhil Pratap is a defender
The opinions expressed are personal.