Updated: Sep 13
According to the World Health Organization (WHO), India has reported 5,30,808 COVID-19-related deaths since the outbreak started. However, according to a WHO analysis released in 2022, the actual death toll in India is around 4.7 million, or over ten times the official figure. The inextricable connection between health and human rights was established as a result of the Indian state’s failings in controlling and managing the COVID-19 pandemic. In response to COVID-19, the Indian government enacted emergency measures that curtailed individual freedom, including restrictions on the right to privacy through public health surveillance and restrictions on the right to freedom of movement through home confinement. While constraints on individual liberties may be necessary during pandemics to safeguard the public's health, such restrictions must be reasonable, proportionate, and free from arbitrary decision-making. In times of health crisis, the formulation of policy should be strictly governed by the laws relating to healthcare and human rights. It is crucial to examine the Indian legal system in light of the COVID-19 pandemic to determine its relevance and effectiveness in combating lethal viral outbreaks, privacy concerns, and, most significantly, its limitations.
Right to Health in India
In India, the Right to Health is understood as a fundamental right stemming from multiple judgments by the Supreme Court. It expanded as a result of several environmental lawsuits in India. The right to a healthy environment was declared a basic right in M.C. Mehta v. Union of India, and this is where the Right to Health sprouted from. The Right to Health was deemed a basic right under Article 21 of the Indian Constitution by the Supreme Court of India in the case of Public Interest Foundation v. Union of India in 2018. Further, the Supreme Court in its historic decision in the Parmanand Katara v. Union of India case, stressed that the Right to Emergency Medical Care is included within the Right to Life. Thus legally, the Right to Health and access to medical care are regarded as collateral rights of the Right to Life. The right to emergency medical attention and treatment was further stressed by the Supreme Court in Paschim Bangla Khet Majdoor Samiti v. State of West Bengal.
India's Legal System Concerning Pandemics
The two main laws that govern India's legal system in the context of pandemics are:
i) The Epidemic Diseases Act, 1897,
ii) The Disaster Management Act, 2005,
Following the outbreak of the COVID-19 pandemic, the Government of India instructed the states in March 2020 to evoke these two laws.
The Epidemic Diseases Act, 1897:
To stop the spread of the bubonic plague, the colonial administration of India instituted the Epidemic Diseases Act in 1897. With only four sections, the act is one of the shortest pieces of law in the nation. The act's Section 2A gives the federal government the authority to take action to stop an epidemic from spreading. Despite being a State responsibility, Section 2 of the Epidemic Diseases Act makes the Ministry of Health & Family Welfare's recommendations and directives binding. According to Section 3 of the Epidemic Diseases Act, anyone who violates the act is subject to penalty under Section 188 of the Indian Criminal Code (ICC). Further, it states that anybody who disobeys the law could be sentenced to up to six months in prison and/or a fine of up to Rs 1,000 if their actions endanger human life, health, or safety. Section 4 of the act gives people legal protection for whatever is done in accordance with the statute (Ministry of Law and Justice 2020).
To begin with an analysis, during the pandemic, the act’s response to the rapidly rising rates of communicable diseases, their dissemination, and the severity of epidemics has been found to be insufficient.
The act’s incredibly brief structure and language limit its scope and success. The definition of "serious epidemic diseases" is ambiguous, the distinction between "isolation" and "quarantine" is obscured, and overall, it is out-of-date and inadequate. It says nothing about factors like the size of the issue, the severity of the illness, the distribution of the affected population across age groups, potential global spread, or the lack of known treatment. Moreover, the statute makes no mention of the need for quarantine procedures or the distribution of medications or immunizations.
Due to the act's silence on all of the aforementioned issues, there is no legal basis for the general public to hold the government accountable for any carelessness on its side because there is no suitable mechanism for the government to rely on.
The laws offer the state governments the freedom to enact temporary rules that may involve more trial and error than strict procedures to contain the epidemic.
The Epidemic Diseases (Amendment) Act of 2020:
The Epidemic Diseases Act, of 1897 was amended in April, 2020 to enable the central government to exercise more powers during a pandemic in order to combat it and to lay down more safeguards for the healthcare personnel involved in fighting against it. Despite its eventual passage, the updated act has significant limitations in this era of shifting dynamics in public health emergency management. Apart from containing the same loopholes, one of the most concerning aspects of the updated act in this generation is that it does not have any provisions in the context of protecting citizens’ privacy.
The Right to Privacy was deemed to be an integral aspect of the Right to Life in a landmark decision by the Supreme Court in the Justice K.S. Puttaswamy (Retd.) and Another v. Union of India case. The Epidemic Diseases Act does not offer any procedural safeguards against any abuse of official authority involving invasion of privacy. There is concern that the law may be abused to target certain people or communities and conduct mass quarantines and profiling. Public employees who work for it are given general legal protection. The act, as measured against the standards of privacy rights, is utterly inadequate since it fails to meet the requirements of reasonable limitations on invasions of privacy.
Disaster Management Act, 2005:
The institutional architecture that is supposed to play a role during crisis situations in India is mentioned under this act as it establishes the National Disaster Management Authority (NDMA), State Disaster Management Authorities (SDMA), District Disaster Management Authority (DDMA) etc. The act also entails the legal and financial mechanisms to navigate through both, man-made and natural disasters. It dictates the government to establish a Disaster Management Fund and a Disaster Response Fund along with capacity building and coordination and implementation processes to be followed.
The scope of the Disaster Management Act of 2005 does not include cases of an "epidemic outbreak" or "possible outbreak".
The Act lacks specific measures for handling public health emergencies and mostly focuses on dealing with natural disasters.
It is not designed to fit the framework of an epidemic-specific action plan.The prevention, control, and management of infectious disorders like COVID-19 are not specifically addressed by the act.
The National Disaster Management Authority's function isn't entirely clear (NDMA). Also, it is unclear what their roles will be during a pandemic like COVID-19.
Additionally, the act lacks sufficient provisions to include low-income households, migrant workers, and other vulnerable communities in planning and decision-making for disaster management. Because of this, certain populations have been disproportionately affected by the pandemic.
Also, there is a lack of clarity on the private sector's involvement in disaster management due to the act's opacity in defining that role. The private sector has been crucial in providing healthcare services and other necessities during the COVID-19 pandemic.
Confusion and delays in the use of measures to control the epidemic have resulted from the above. Moreover, the COVID-19 pandemic saw a disjointed response due to a lack of coordination between various authorities and agencies including the various states and the central government.
Judicial Activism Due to Weak Legislation
During the COVID-19 pandemic, judicial intervention in India reached new heights. A significant step forward in judicial activism was the Supreme Court's directive to establish a national task force for the distribution of COVID-19 resources (mostly oxygen) throughout the nation. As the Supreme Court and the High Courts gave the Union and state governments instructions on how to handle the several waves of COVID-19, a tendency was evident. High Courts were seen issuing orders for the distribution of oxygen in accordance with their state's needs. There were ongoing judicial proceedings that made headlines and put pressure on governments to act properly and rightly in the interests of their citizens in accordance with the fundamentals of the Right to Health and Health for All.
The Law and Policy Approach to Pandemics
Legislators and politicians were essentially denied the time and planning necessary to create a policy or enact a new law to address the problem due to the COVID-19 pandemic's unusual nature. The pertinent laws were so out-of-date that they were unable to support the decision-makers by giving them adequate time to develop policies that were specifically tailored to the COVID-19 pandemic. Due to the pandemic's rapid evolution, it was inevitable that most, if not all, policies created using the traditional stage-oriented policy-making techniques would be substantially behind the actual situation. Thus, in order to correct the governance's shortcomings and guarantee a human rights-based strategy,
i) The Indian State should strengthen its legislative framework by formulating a law in resonance with the changing times, one that involves a comprehensive pandemic preparedness plan correcting all the shortcomings of the existing acts. This would allow the government to rely on a robust system in times of crisis and allow time for the policymakers to come up with solutions specific to an unknown menace.
ii) A people-centered, artificial intelligence (AI)-powered, data-driven supervision-enhanced policy-making model that could help India develop policies that have the potential to yield desirable outcomes with limited unintended consequences. Such a modeled approach would let policymakers produce policies of empirical quality and evidence-based solutions.
The aforementioned corrective measures could guarantee that the Indian State is well-prepared against biological dangers to safeguard human life and human rights.
For so many people around the world, the COVID-19 pandemic's ravages and aftermath served as a nemesis. The weaknesses of the health systems around the world grabbed news for their failures as the world struggled to combat coronavirus. A rights-based approach to health is therefore essential to averting such calamities and safeguarding future generations. Human rights offer an all-encompassing framework for enhancing global health with justice, turning moral requirements into legal entitlements in significant COVID-19-relevant areas.
India has demonstrably failed to provide a cutting-edge legal system to combat a pandemic. To fill in the gaps in the current framework, a new statute is needed rather than depending on regulations from the colonial past. According to history, repressive tactics taken during plague epidemics caused resentment and discontent among the public. This colonial statute should be repealed and replaced with one that is more broad, contemporary, and morally sound and that emphasizes a rights-based, public health-oriented approach. Governments should recognise that human rights are essential to public health solutions that use reason, proportionality, and accountability rather than seeing them as unjustified constraints on public health efforts.
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