India’s response to the coronavirus disease (Covid-19) pandemic has so far been effected predominantly by three different laws – the Epidemic Diseases Act, 1897 (EDA); the Disaster Management Act, 2005 (DMA); and the Indian Penal Code, 1860 (IPC). After the declaration of the pandemic as a “notified disaster”, the National Executive Committee of the National Disaster Management Authority (NDMA), set up under the DMA, has been imposing the graded lockdowns and issuing periodic guidelines to states for enforcing the lockdowns. Simultaneously, both the central and state governments have fallen back on EDA to address the health aspect of this disaster. However, people violating lockdown orders are being charged under sections 188, 269 and 270 of IPC.
The use of such an ad-hoc legal architecture with a multiplicity of statues has resulted in a patchwork response against the epidemic in several areas.
The archaic three-page-and-four-section EDA does not define what constitutes a “dangerous epidemic disease”. It confers unbridled power to the executive to respond to the disease by the way of promulgating ordinances or regulations, but without due care to the social and reputational standing of the people affected due to the pandemic.
Similarly, DMA, passed as an immediate response to the 2004 tsunami, is largely framed for effective preparation, mitigation and managing a natural or man-made calamity, mishap or a catastrophe such as tsunamis, earthquakes and cyclones. These events are normally geographically-localised catastrophic events, disrupting normal life for a few hours or days, but unlike a public health epidemic, do not last over a long period of time. In contrast to natural disasters, physical evacuation of people from an affected area to a relatively safe zone is not an option during a pandemic due to the likelihood of the spread of the infection.
Cognisant of the lack of appropriate epidemic control and management law, in 2017, the Union ministry of health and family welfare prepared a comprehensive Public Health (Prevention, Control and Management of epidemics, bio-terrorism, and disasters) Bill to address the loopholes in the current laws including EDA. However, the Bill did not get tabled in Parliament. An Approach Paper on a new Public Health Act proposed by a 2012 task force is also gathering dust.
A new and robust epidemic law must take into account the experiences and lessons learnt from the current crisis.
First, the Act should provide for an NDMA like authority or body, having representation from both the Centre and states, responsible for designing and implementing well-coordinated surveillance, identification, contact-tracing, quarantine, isolation, testing strategy and treatment. The Act must also empower the body to plan a comprehensive and reasoned lockdown strategy, taking into account disruptions to supply lines, essential and non-essential services, human migration, relief and food support and all non-health services and utilities.
Second, the Act must have provisions to allow for multi-sectoral emergency financial support and relief measures to local authorities, farmers, businesses and health care providers, and for animal care and livelihood safeguards.
Third, the Act must provide adequate autonomy to states to design and enforce responses as per their local assessments, such as preparing health facilities to respond to various challenges at the district-, block- and gram panchayat-level. For example, the Odisha Government’s conferment of powers of the Collector on sarpanches to enforce isolation and quarantine of the migrant workers returning home from outside.
Fourth, the Act must put in a more robust disincentive scheme, which should include a combination of civil and criminal penalties for violation of authorities’ orders. Currently, it provides only for criminal penalties. This should also include stringent punitive action against people abusing or mistreating frontline workers like doctors, nurses, paramedics, village-level health workers, sanitation staff and police personnel, accompanied, of course, by sufficient safeguards against overuse or misuse.
Fifth, the Act must also have provisions to protect every citizen’s rights such as privacy. The balance between public health and the right to privacy must not be sacrificed at the altar of an emergency response. Any government response which involves surveillance or collection of personal data of individuals must also have adequate checks and balances to ensure proportionality and reasonableness of data collection. It must have provisions of anonymising the personal data, rigorous record-keeping, non-disclosure of personal data publicly and its deletion when the purpose of 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 such as the coronavirus pandemic require extraordinary measures. But even in times of emergencies, the laws must not fall silent. Public trust is strengthened only when adequate transparency and accountability measures are put in place by governments so that the public itself is able to judge the proportionality and reasonableness of the government’s actions.
Amar Patnaik is Member of Parliament, Rajya Sabha from 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 PhD in management
Nikhil Pratap is an advocate
The views expressed are personal