The world is dealing with a novel coronavirus outbreak, COVID-19, since December 2019. COVID-19 is an infectious disease caused by a previously unknown coronavirus. The total number of confirmed cases of COVID-19 in India have been increasing since its first case was seen in January.
Multiple methods to respond to the pandemic threat are being utilised in India. Contact tracing, isolation and quarantine are important to prevent the virus from spreading into communities at large. These methods used by the State invariably impinge on the autonomy, liberty and dignity of individuals. We allow these intrusions by the State for it to be able to act in the interest of the population at large. The government actions under pandemics are legitimised through laws. In the present article, I study the legal landscape of the response to the COVID-19 threat with a specific focus on Epidemic Diseases Act, 1897. This law provides wide powers to the states to take action against a dangerous epidemic disease. Recently, there have been calls to update this colonial law as it does not provide guidelines to the states to act to prevent and mitigate epidemics. On the other hand, experts with experience of working within the government seem to believe that the law is appropriate and does not require any changes. To understand the role of this law, I study its application historically and today. I examine whether the recent COVID-19 regulations issued under it are compatible with the standards of reasonable restrictions under the Indian constitution using the test laid down by the Supreme Court on privacy as an example. Finally, I attempt to answer two questions based on the study; a) whether there is there a scope for improvement in current COVID-19 regulations, and b) whether any changes in the Epidemics Diseases Act, 1897 are required.
In case of public health emergencies like the COVID-19, prevention and mitigation is undertaken at a local level while coordination is performed by higher level of the government. The Indian Constitution describes the responsibilities of the governments with respect to subjects related to public health. Public health and Sanitation are the responsibilities of the state government and local government. The union government is responsible for port quarantine, inter-state migration and quarantine.
While public health is a state subject in the Indian constitution, about eight states and union territories in India have a legislation regarding the subject. These laws help the states in defining the administrative, financial and legal framework of action for public health. For instance, the The Tamil Nadu Public Health Act, 1939 sets up public health boards and provide for public health staff in local areas who are responsible for supply of water, drainage, sanitary conveniences etc. In places where laws are absent the basic water and sanitation services are provided directly by a dedicated public health/public engineering department. The state capacity to provide public health services varies considerably among the states in India.
The union government is using various measures to prepare and respond to the COVID-19 pandemic. In January, it had invoked its powers under the Disaster Management Act, 2005 to allow the Ministry of Health to "enhance the preparedness and containment of novel Coronavirus (COVID-19) and the other ancillary matters connected thereto". This would include medical preparedness as well as mass casualty management at hospitals. Notifying the pandemic as a disaster enables the states to use funds from State Disaster Response Fund on COVID-19. The Ministry of Health has also been issuing regular advisories for travel, mass gatherings and healthcare while keeping a tab at global scale of the outbreak. On 11 March, 2020 in a meeting of High Level Group of Ministers, it was decided that all states and union territories should be advised by the Ministry of Health to invoke the provisions of Section 2 of the Epidemic Diseases Act, 1897. This was done with an aim to implement advisories of the Ministry of Health at the union level by the states. Other than the national laws, India is also signatory to the International Health Regulations, 2005 (IHR). These regulations intend to prepare countries for establishing an appropriate public health response to international spread of diseases. The Integrated Disease Surveillance Program (IDSP), is responsible to implement the provisions under the IHR in India. It does so by strengthening disease surveillance for infectious diseases and setting response framework for outbreaks of a disease.
The Epidemic Diseases Act, 1897 (the law) was enacted in colonial India to enable the states to control spread of diseases. This law was designed to put government machinery into action once there is a considerable threat of a dangerous epidemic disease and not as a code for establishing general public health systems. The provisions of the law seem to be innocuous. It consists of four sections which provide wide powers to the government. The state governments are empowered to regulate dangerous epidemic disease, a term not defined in the law. The union government is empowered to regulate ships or vessels leaving or arriving in India. Disobedience to the regulations is made a punishable offence while providing for immunity to pubic officers for performing functions under the law.
There is much to learn from the way the law was enacted and used by the government historically. SL Polu while describing the history of infectious diseases in India notes that in formulating Epidemics Diseases Act, 1897 and medical strategy to fight epidemics, the government primarily wanted to ensure compliance with the international sanitary conventions, protect trade, and assuage any fears abroad of the potential spread of plague or cholera outside India. (SL Polu (2012)) The epidemics of plague and cholera at that time were treated as a political emergency. David Arnold describes the law as "one of the most draconian pieces of sanitary legislation ever adopted in colonial India." (David Arnold (2000)) The measures under the act which invited Arnold's criticism included compulsory detention of plague suspects, destruction of houses and infected property, physical examination of persons and banning of fairs & pilgrimages. This invited distrust of the Indian communities and resistance towards action taken by the State. As a result, Arnold notes that the colonial government modified its strategy in favor of moderate measures such as creating awareness about sanitation, advocating voluntary measures, and setting up institutions for medical research.
Currently, many states including Delhi, Haryana, Karnataka, Maharashtra and Uttar Pradesh have invoked their powers under the 1897 Act for the COVID-19 pandemic. This enables the states to undertake Non-Pharmaceutical Interventions (NPIs) to mitigate the epidemic spread in absence of medicines to treat the disease. These NPIs, so far include closing of educational institutions, malls, schools, gyms, advisories on social distancing as well as regulations regarding home isolation and quarantine. However, some of the regulatory provisions provide extensive powers to government officers. For instance, state regulations such as the Bihar Epidemic Diseases COVID-19 Regulations 2020, Uttar Pradesh Epidemic Diseases COVID-19 Regulations 2020, Delhi Epidemic Diseases COVID-19 Regulations, 2020 authorise officers of the government to admit and isolate a person in case he/she has a history of visit to an area known to be affected by COVID-19 or has been in contact with a symptomatic person. This can be done forcefully, if required. The officers are also given powers of surveillance of individuals as well as private premises. Lockdowns can be issued by the District Magistrate. Further, in order to prevent fake news from being published, prior restraint of free speech is authorised by not allowing anyone to publish information regarding COVID-19 without prior permission of the government.
The current regulations on COVID-19 allow states to practice the coercive actions comparable to those undertaken by the colonial government in the past. These actions have already put restriction on movement, free speech, religion, profession and privacy. The restrictions are legal in as much as they are necessary and proportionate to a legitimate aim. (Supreme Court of India, (2019)) Given the nature of the pandemic which requires extensive state surveillance and usage of force, these must be balanced by corresponding checks on the use of State power. Unless such checks and balances are put in a legal framework, there will be a threat to the individual from the State itself.
As discussed above, the regulations on COVID-19 impact many aspects of fundamental rights of individuals. Herein, I examine the law with respect to the right of privacy. The right to privacy, which includes personal autonomy, liberty and dignity, is a fundamental right in India. However, the right is subject to reasonable restrictions such as in furtherance of public interest. In the Puttaswamy judgment, the court laid down the following tests for limiting the discretion of the State while impinging on the fundamental right to privacy: (Supreme Court of India, (2018))
- The action must be sanctioned by law
- The proposed action must be necessary in a democratic society for a legitimate aim
- The extent of such interference must be proportionate to the need for such interference
- There must be procedural guarantees against abuse of such interference
The test of legitimate aim is satisfied by the Epidemic Diseases Act, 1897 as its function is to prevent the spread of a dangerous epidemic disease. It is impossible to define specific proportionate regulations for a novel infectious disease in a parent law. Therefore, the law provides for delegated legislative power to the states as an when the situation arises. However, the parent law does not provide for procedural guarantees against abuse of State power of interference with privacy of individuals. For instance, the law does not define or provide guidelines on the meaning of a dangerous epidemic disease. Due to this, the citizens are at risk of both inaction and excessive coercion by the State. In the past, citizens have been forced to petition to courts for directing the State to take action, or to defend themselves against excessive action of the State.
This law can also be used by the State for profiling, mass quarantine and targeting of individuals. Even then, there is legal immunity given to public servants who function under the law. Therefore, the law focuses on public interest while dispensing wih any procedural guarantees for transparency and accountability against abuse of its powers. It is due to these reasons that the Epidemic Diseases Act, 1897 does not pass the tests of reasonable restrictions on the fundamental right of privacy of individuals.
The pandemic of COVID-19 has already reached India and the Epidemics Diseases Act, 1897 does not balance the rights of individuals with the power of the State. The government can, however, still utilise learnings from its own past as well as current practices to make effective regulations.
The problems in the Epidemic Diseases Act, 1897 were apparent since its introduction. In the case of Ram Lall Mistry v RT Greer in 1904, the Calcutta High Court had to decide whether the any action can be instituted against the defendent, a government servant, for destroying the property of the plaintiff. (Calcutta High Court, (1904)) In this case, the plague regulations allowed an officer to destroy the property of individuals, but also mandated them to pay adequate compensation for destruction of the property. Given that the regulations specified the consequence of destruction of property to be adequate compensation, the defendent was held to be personally liable for paying such compensation. The defendent could recover the amount from municipal funds. This case clearly shows that regulations under the Epidemic Diseases Act, 1897 can introduce personal liabilities on the officers of the State while performing their functions. The current COVID-19 regulations need to be modified to introduce similar provisions. For instance, the regulations should increase accountability of the public officers by including elements of rule of law such as; defining notice and consent framework for use of sensitive personal data with a mandatory sunset clause, right to be heard, and absence of immunity against illegal actions done by State representatives.
Modern states use laws, rules and regulations not just for protection of law and order but also for social welfare. The World Health Organisation (WHO) advocates including provisions for protection of individual rights in drafting policies for pandemics. These include transparency, public engagement and social mobilisation. For instance in US, The Health and Human Services Department is responsible for tracking the distribution of federally purchased vaccine, identifying and sharing details about high priority population with stakeholders while maintaining confidentiality of individuals. This is done through developing guidelines on these processes and is legally mandated under the Public Health Services Act.
In India, such provisions are absent. As a result, on COVID-19, the reports suggest that the State power has been exercised for arresting persons spreading fake news on the disease, arresting persons gathering in large numbers despite directives of the government, arresting persons not following home quarantine and sharing publicly the list of suspected patients. Using excessive power without transparency has historically shown a negative impact on the community participation at the time of epidemics. Reports of being forced into unhygeinic quarantine is deepening the distrust between people and the State. 2 persons have already reportedly died due to suicide fearing the disease and many suspected patients have absconded public hospital facilities.
As the science around the novel virus develops, the governments are forced to take immediate public health measures. One way to ensure such measures are accepted in the society is through transparency. The orders/advisories/guidelines under the regulations must be well-reasoned so as to not inadvertently encroach on the life and liberty of individuals. Within India, the states behave differently with respect to transparency. For instance, Kerala has a dedicated daily bulletin with information about latest advisories, statistics about isolation, testing and results at a single place. Delhi does not have such a dedicated bulletin. Information about orders, notifications and minutes of meetings are disaggregated and irregular. On the other hand, information released by Indian Council of Medical Research (ICMR), the nodal body for COVID-19 lab testing is sporadic and does not offer details such as aggregate number of test requests accepted and rejected, time taken for test results or number of healthcare workers tested. The authorities responsible to act on COVID-19 situation in India should follow best practices in the interest of transparency such as; risk communication as seen in Singapore, anonymised details about suspected patient and action taken by states as seen in Kerala, and Tamil Nadu, sharing epidemiological links of cases as seen in South Korea, and providing guidance to employers, as is done in the US .
While some immediate fixes in regulatory practices can help the Indian response to COVID-19 threat, structural changes are required in order to balance health security with civil liberties. India has an excessively fragmented landscape for health policy. Epidemic Diseases Act, 1897 is one element of interventions among the multiple agencies that affect the state of public health in India. The limited purpose of the law is to allow states to take extraordinary measures at the time of a dangerous epidemic disease. It does not establish any coordination mechanism between states and the union government at the time of a dangerous epidemic outbreak. The role of the union government is also negligible (such as port quarantine) under this law. However, Article 253 of the Constitution allows the union government to enact a law to give effect to the International Health Regulations, 2005 - which asks for setting up mechanisms to prevent, protect against, control and provide a public health response to international spread of disease. The union government has already been establishing public health surveillance and response mechanism for public health risks and emergencies under its international obligations under IDSP and the National Health Mission (NHM), instead of modernising its legal framework.
A legal framework for infectious diseases in the interest of public health security is essential to increase transparency and accountability of the State towards the public. An example of a national law to give effect to the International Health Regulations, 2005 is seen in Australia. The National Health Security Act 2007 was formed to provide for a national system of public health events of national significance. The union government is empowered to coordinate and consult with states for sharing information and to identify and respond quickly to public health events. The law defines permissible purposes for which state action is appropriate. The citizens are guaranteed confidentiality of information under the law, and detailed consent requirements are laid down for authorisation of use of such information.
Any such law when designed for India, needs to pass the tests of reasonableness as set out by the Supreme Court. This can be achieved by putting procedural guarantees against abuse of power provided to the State as seen above.
The Indian response to COVID-19 has been fragmented. Multiple laws, rules, programmes, regulatory bodies along with national and state level advisories are the components of the response system. One of these laws is the Epidemic Diseases Act, 1897. This colonial law has been a subject of debate as calls for government action grows due to the outbreak. In this article, I attempt to study the role of the Epidemic Diseases Act within the pandemic response. Instead of building a public health framework, the limited purpose of this law is for the states to take special measures in case of outbreak of dangerous epidemic diseases. Within this limited framework, the law gives wide powers to the government to undertake coercive actions against individuals.
Indian states have notified COVID-19 regulations under the law. A study of the provisions of these regulations shows that there are unmitigated powers of surveillance and use of force given to state authorities under them. While such powers are envisaged to be used under the legitimate aim of protecting health of the population, neither the Epidemic Diseases Act nor the regulations under it attempt to describe procedural guarantees against abuse of state coercion.
Using examples of Indian states and past utilisation of the regulations, I attempt to understand what can the states do with their COVID-19 regulations to balance the rights of the individuals with their own power. This is important as emergency public health measures require community trust and participation. Introducing accountability of the government officials & departments while performing their functions under the law and increasing transparency are the two best practices the states can adopt immediately without requirements of changing the Epidemic Diseases Act, 1897.
In order to mandate using such procedural best-practices in the future, a comprehensive legal framework for epidemic preparedness and response is required instead of the the current fragmented response framework through programmes and missions. This is required to increase the accountability of the government to its people. It is imperitive that such a law is passed by the union government while providing states power to utilise their public health framework. This can be done in India under article 253 of the Constitution. The role of such a legal framework to protect the rights of individuals while defining functions, powers and liabilities of government authorities for situations such as epidemics and pandemics.
PS: A shorter version of this article was published in Bar & Bench here.
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