Authorities all around the globe closed their eyes to the early warning signs of a health emergency of this unprecedented magnitude. By virtue of such ignorance, India’s response to the pandemic has been nothing more than a knee-jerk reaction.

Dousing fires as they continue to light up is not a long-term solution. A welfare state must be equipped to protect the well-being of its citizens. This where the incumbent regime lacks the appropriate legislation to effect the same.

The Epidemic Diseases Act, 1897 is absurd and ineffective. The legislation is a testament of lawmakers shirking their responsibility to make appropriate laws on the subject. The archaic law also fails to counter the problems of the contemporary world.

In relatively recent times, efforts were made to fill in the lacunae created by advancement in health science. In 2017, the Public Health (Prevention, Control and Management of Epidemics, Bio-Terrorism and Disasters) Bill was drafted. The National Centre for Disease Control (NCDC) and the Directorate General of Health Services (DGHS) jointly prepared this Bill, citing the need to empower government bodies during health emergencies.

The Bill aimed to thoroughly address health emergencies that India might face in the future and to repeal the Epidemic Diseases Act. Initial concerns over the sudden focus on bioterrorism and lack of governmental enthusiasm on the subject made sure that the Bill was never tabled in Parliament. In retrospect, some of the provisions are especially noteworthy.

Scope of the Bill

The Public Health Bill, 2017 sought to define fascinating and atypical terms such as "Bio-terrorism", "Public Health Emergency", "Social distancing" and "Quarantine{. The definition clause of the Bill alone is enough to exemplify the exigency of modern laws on the issue.

Section 2(d) provides the definition of the term "clinical establishment" and gives a comprehensive and extensive meaning to it. Every medical facility, irrespective of its composition, ownership, size, and speciality, was brought under the scope of clinical establishment for the purposes of the Bill. The wide ambit of ‘clinical establishment’ even includes the compact clinics of individual doctors and all kinds of research and diagnostic labs. The solitary exception in this regard is clinical establishments owned, managed and controlled by the Armed Forces. The utility of this definition is put forth in Section 3 of the draft legislation.

Section 3 confers a barrage of powers to the state governments, union territories, district and local administrations. These instrumentalities may mandate health measures including quarantine, isolation and social distancing to any person(s) or any class of persons. They are empowered to prohibit certain activities, ban or regulate drugs and other hazardous substances, conduct medical tests, and undertake diverse decontamination measures.

Through Section 3, these authorities had the competency to issue directives to all clinical establishments. Such powers could be exercised when any state government or administration of union territory or any district or local authorities are of the opinion that there is an existing or impending public health emergency.

Health Emergency

Analogous to other emergency provisions, the letter of the law in the Bill allowed the Central government to disregard the unique federal structure of India if it appears that it would be expedient and in public interest to do so, and confer unto itself the powers prescribed in Section 3 of the Bill.

Section 13 provides for the Centre to formulate the initial rules for execution of the Bill. The state governments had to follow the specified rules, but could amend them for better implementation according to the situations arising in the state. Though the power to amend has been granted, it can amend only three types of rules, which do not offer much flexibility to the administration.

Dr. Ambedkar’s reckoning that the federal structure may change depending on the requirements and circumstances may be employed to buttress Section 4 of the Bill. A temporary abolishment of the federal scheme may be excused, nay, encouraged, in order to align national action against pandemics, especially when ephemeral changes to health policies do not adversely affect the socio-legal outline of states.

Penal Provisions

The provisions of the Public Health Bill, 2017 would have proven fruitful in present times. Section 7 of the draft Bill put any person authorised by this act or the rules made under it within the definition of a Public servant as expounded under Section 21 of the Indian Penal Code [IPC]. Application of this provision would have acted as a deterrent to those mischievous elements of society who have resorted to violence against healthcare workers.

It would bring Section 185, 186 and 187 IPC into consideration and would not require hurried ordinances, which even though aim to compensate by imposing stricter punishments, are reactive, and therefore, serve no purpose.

The penalty stipulated in the Public Health Bill, 2017 accounts for varied situations that may arise. It penalises the defaulter up to Rs. 10,000 for the first contravention and up to Rs. 25,000 for repeat negligent contraventions. For wilful contravention, the fine levied can be up to Rs. 1 lakh and can also attract imprisonment of up to 2 years. The quantum of fine mentioned in the Bill is reflective of the present economic situation and the deterrence brought upon by imprisonment is of a sensible degree.

Since any authorised person under the Act is to be treated as a public servant, any endeavour to inhibit their actions can be punished with the just imposition of Section 188 of the Indian Penal Code as well. On the contrary,

Section 188 IPC is the sole punitive action available against defiance of rules made under the Epidemic Diseases Act, wherein the punishment determined is imprisonment for a maximum term of one month or fine of two hundred rupees or both. Moreover, if a person’s action causes danger to human life, health or safety, or causes or tends to cause a riot or affray, he can be imprisoned up to six months or can be fined up to Rs.1000 or both.

Section 188 IPC also stipulates that the offender must have the knowledge that he is directed to follow certain measures as may be promulgated by a public servant who is lawfully empowered to do so. This constraint vis-a-vis knowledge of the offender is not a prerequisite under the Public Health Bill, 2017. The absence of such a condition would have certainly paved the way for better management of the lockdown.

Schedules in the Bill

The fourteen sections of the Bill are supplemented by two schedules. The first schedule enlists epidemic-prone diseases. The second schedule enlists potential bio-terrorism agents. The first schedule includes SARS, of which the novel Coronavirus (also known as SARS-COV-2) is a mutation.

Hence, had this Bill taken the shape of law, it would have been applicable without requiring any amendments to this schedule. The aforementioned observations and the enormity of the current chaotic situation assert the need of reintroduction of the Public Health Bill, 2017 or the introduction of a similar legislation.

The COVID-19 pandemic serves as a standout opportunity to update health laws throughout the country. Law needs to be an integral part of our public health system and any dearth of legal preparedness in the spheres of planning, communication, coordination, surveillance, and protection of human rights during a public health emergency needs to be addressed immediately.

Samarth Luthra is a student at University School of Law and Legal Studies, GGS Indraprastha University and Satyam Singh is a student at Jindal Global Law School.