A new kind of coronavirus discovered late last year in central China has now spread with ruthless speed to every continent on earth except Antarctica. It has killed thousands, disrupted daily life in ways that would have seemed unthinkable at the start of the new year, and now poses a dire threat to the health of the world economy. The World Health Organisation says the coronavirus pandemic is the "defining global health crisis of our time", capable of revealing the best and worst in humanity. On March 22, Prime Minister Narendra Modi pointed out the scale of the challenge: "Even World War I and II didn't affect as many countries as the coronavirus has done."

Coronaviruses are actually a big family of viruses, named for the crown-like effect created by spikes on their surface -- these are actually proteins that help them invade human cells. Some coronaviruses, in fact, cause the common cold.

So, what is Covid-19, then?

That's the name of the respiratory illness caused by the new coronavirus. Short for coronavirus disease 2019, it was first detected when a cluster of mysterious pneumonia cases emerged in China's Wuhan city late last year.

 

Covid-19: How it spreads

The new coronavirus mostly spreads through respiratory droplets leaving an infected person's mouth or nose when he (or she) coughs or breathes out -- and when these are either inhaled or ingested by a healthy individual, or transferred by hand from a contaminated surface to his eyes, nose, or mouth.

There's evidence that the coronavirus can hold out for a long time on surfaces: A recent US study showed it can survive for up to four hours on copper, a day on cardboard and two or three days on plastic and stainless steel. It also survives in aerosols -- droplets suspended in the air -- for as long as three hours.

Infected people, on average, seem to pass the virus on two or three others. There's no vaccine or specific anti-viral treatment yet, only supportive care. (The first human trial of a vaccine began in the US in mid-March.)

How can you protect yourself? Here's a list of precautionary measures based on information provided by the World Health Organisation, the Indian government, and the US Centres for Disease Control.

 

ISSUES AND ARGUMENTS 

This pandemic has brutally exposed the vulnerabilities of some of the best health systems. Testing is crucial to gauge the extent of Covid-19 transmission in any country. India currently has one of the lowest ratios of testing in the world, which may have masked coronavirus cases. India lags at just 10 tests per million. Until the national lockdown, the testing strategy of the government was relying on the assumption that no community transmission was happening in India, and that there were only foreign imported cases. Basing the testing strategy on this and testing only people coming from infected areas abroad may have unintended consequences on the spreading of the epidemic. Indeed, with the lockdown, a large amount of workers migrated internally from existing hotspots like Mumbai and Delhi towards their home states like Uttar Pradesh and Bihar. Failure to acknowledge presence of Covid-19 infections in the community and failure to test all symptomatics in Mumbai or Delhi itself may have exposed these states to the diffusion of the virus and a potential explosion of cases, in places where health infrastructures are poorer. At the beginning of its national lockdown, India simply did not have enough testing kits and even if the government has given licenses to private companies to sell them in India, the constraint on testing lies in the number of laboratories. On 23rd of March, India had 118 accredited labs for a population of 1.3 billion with huge geographical inequalities; Arunachal Pradesh (1,5 million) and Nagaland (3,3 million) had no testing centres, Bihar had only one accredited lab for a population of 110 million compared to 8 facilities in Rajasthan for a population of 80 million. Even if states were supplied with an infinite number of testing kits, government labs would not be able to utilise them, as their testing capacity is around 90 samples per day. That’s why the government had allowed private players to conduct Covid-19 tests, which means that even those who are not hospitalised can get tested but at their own cost. The price cap of 4500 INR (around 55 euros) per test by the government, is too high for most Indians. Considering the high price of private testing and all the logistical problems associated with the lockdown, most Indians are likely to depend only on the public system to get tested. In an already stretched and underfunded public healthcare system, money spent on the coronavirus tests leaves less for other public health problems as India spends only 3.7 percent of its total budget on health. A budget that is far too limited to respond to the massive need of intensive care that has been necessary in countries already impacted by Covid-19. Around five per cent of the infected patients in India will require intensive care and half of those admitted in the intensive care unit will require mechanical ventilation; up to 1 million ventilators at the peak of the Covid-19 epidemic may be needed. As per Ministry of Health estimates, as of March 24th there were 8432 ventilators in public hospitals, a number that could reach 50 000 if we factor in private hospitals. Compared to this, USA, which is currently overwhelmed with a Covid-19 outbreak, has 160 000 ventilators for a population that is one third of India. So far, India imports almost 75% of ventilators, its domestic production capacity stands at 5000 ventilators per month and also depends—for a few critical components—on international suppliers, who are all overstretched right now. Given the severe challenges faced by the public health system and the dominance of unaffordable private health care in many Indian States, the response to the Covid-19 crisis must prioritize the strengthening of an affordable and accessible health care system for all, whether rich or poor, Hindu or Muslim, from Bihar or Kerala. But this pandemic also revealed the extreme and appalling vulnerability of most Indians to a catastrophe that goes far beyond healthcare. In addition, and far beyond the risk of infection, the measure taken to contain contagions—the lockdown—will also have disastrous consequences for a large part of the population.

This pandemic is also violating our fundamental rights like article 21, right to life and liberty. Article 21 reads as: “No person shall be deprived of his life or personal liberty except according to a procedure established by law.”

Article 21 secures two rights:

1)  Right to life, and

2) Right to personal liberty.

 

RULES (Pandemic Situation)

Under the Indian Constitution, public health and sanitation are the responsibilities of the state and local governments while the union government manages port quarantine, inter-state migration and quarantine. Only about eight states and union territories in India have legislation for public health.

For instance, The Tamil Nadu Public Health Act, 1939 sets up public health boards and provides for public health staff who are responsible for supply of water, drainage, sanitary conveniences etc.

The Union government is using various measures to prepare and respond to the COVID-19 pandemic. These are:

● In January, it invoked its powers under the Disaster Management Act, 2005 to enhance the preparedness and containment of COVID-19 at hospitals. Notifying the pandemic as a disaster enabled the states to use funds from the State Disaster Response Fund on COVID-19.

● In March, the Ministry of Health advised states to invoke the provisions of Section 2 of the Epidemic Diseases Act, 1897.

● As a signatory to the International Health Regulations, 2005 (IHR), India needs to establish an appropriate public health response to international spread of diseases. This is done through the Integrated Disease Surveillance Program (IDSP).

The role of the Epidemic Diseases Act, 1897

The Epidemic Diseases Act, 1897 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 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 public officers for performing functions under the law.

The power of states during a pandemic

Most Indian states including Delhi, Haryana, Karnataka, Maharashtra and Uttar Pradesh have invoked their powers under the law. This enables them 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 certain situations.

This can be done forcefully. The officers are also given powers of surveillance of individuals and private premises. Lockdowns can be issued by the District Magistrate. Further, free speech is restrained by not allowing anyone to publish information regarding COVID-19 without prior permission of the government to prevent the spread of fake news.

While all these powers are to be performed in the noble function of protection of the public, the results of excessive action can be disastrous.

The current regulations on COVID-19 allow states to practice the coercive actions comparable to those undertaken by the colonial government. 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.

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 to protect the rights of individuals.

he 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. 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:

I. The action must be sanctioned by law

II. The proposed action must be necessary for a legitimate aim

III. The extent of such interference must be proportionate to the need for such interference

IV. 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. 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 Indian example of a legal framework with such procedural checks and balances is the Disaster Management Act, 2005. This law sets up national, state and district level authorities. It then defines the role of union and state governments under various ministries. The law also has provisions for capacity building by setting up institutes, financing mechanism and human response workforce. However, Article 253 of the Constitution allows the union government to enact a law to give effect to the International Health Regulations - which asks for setting up mechanisms to prevent, protect against, control and provide a public health response to international spread of disease.

Any such law when designed for India, needs to pass the tests of reasonableness as set out by the Supreme Court.

The government ramps up efforts to tackle the COVID-19 pandemic, the primary law its resorts to is the 123-year old The Epidemic Diseases Act, 1897, that governs healthcare emergencies in India. The colonial-era law, enacted to fight the bubonic plague in the erstwhile Bombay, comprises of four sections spread over just three pages. Experts point out one of the primary issues facing administrators dealing with the pandemic situation is the federal structure of Indian democracy. Public health features in the state list under the Seventh Schedule of the Constitution. The Centre can only advise states to invoke the laws and regulations, not mandatorily impose it, say experts.

“The power granted to the Centre under this Act is very limited, and it is the ultimate discretion of the state government to take a step by framing appropriate regulation,” says Saxena. Moreover, not all states have framed regulations to contain the pandemic. “Those that have made these regulations have spent valuable time in mulling the pros and cons before notifying them,” he adds.

While the government also declared the disease as a “notified disaster” under the Disaster Management Act, the fact remains that India does not have dedicated legislation for a pandemic situation. An overarching law governing public healthcare is a glaring gap in India’s fight against the COVID-19 pandemic.

Kashish Aneja, a global health lawyer associated with the World Health Organisation, points out that The Epidemic Act doesn’t meet thresholds under Article 19 and 21 of the Constitution.

He highlights four major gaps plaguing the Act. These relate to rights of healthcare personnel, travel restrictions, privacy rights, and investments needed to meet the healthcare challenge. Even though India is a signatory to the World Health Organization’s International Health Regulations (IHR), several gaps need to be plugged in domestic laws, say experts.

For instance, a complete ban on commercial flights may not align with Article 43 of the IHR, which calls for proportionality of such bans to potential risk. Similarly, the privacy of a patient and disclosure of their medical information needs to balance with public needs. Experts say no such provision to maintain this balance is available under the current laws. An overarching law could also include provisions for an emergency fund to deal with such situations.

“The present framework does not give much attention to surveillance, vaccination and public health response,” points out Shashwat Awasthi, a researcher at National Law University, Lucknow. 

The Indian Penal Code (IPC), deals with offenses affecting the public health safety convenience, decency, and morals, which can be split into two major parts: one dealing with the public nuisance and the other dealing with the quarantine rule. The IPC law is further supplemented by the Epidemic Diseases Act. This law of 1897 was first enacted to tackle the outbreak of the bubonic plague in Mumbai in former British India and is frequently applied to the containment of epidemics like cholera, malaria, dengue fever, and swine flu. The enforcement of quarantine law and clamping of a nation-wide lock-down has been extended from April 14 to May 3, 2020. The concept of quarantine provides for social distancing to contain the spread of the virus and undertake measures to ensure the maintenance of essential services and supplies. The current situation in India amid COVID-19 derives from the Sections 6(2)(1) and 10(2)(1) of the Disaster Management Act for the quarantine law enforcement and protection of health.

The IPC was a visionary Code as such a law was not in existence in England at that time. One of the most pivotal segments of containment of public nuisance is the quarantine provision of IPC. Section 188, 269, 270, and 271 of IPC and Section 133 CrPC, assumes pivotal significance in the present scenario of the COVID-19 pandemic and lock-down orders. The relevant provision relating to a negligent act likely to spread infection of disease dangerous to life is Section 269 of the IPC: “Whoever unlawfully or negligently does any act knowingly to spread the infection of any disease dangerous to life shall be punished with imprisonment of six months and fine or both.” Section 270 further provides that any malignant act likely to spread infection of disease dangerous to life shall be punished for the imprisonment of two years. Section 271 also provides that disobedience of quarantine rule is subject to six months imprisonment or a fine. The State has a paramount duty for nutrition security, the standard of living, and improvement of public health under Article 47 of the Constitution of India.

CONCLUSION

The Indian response to COVID-19 has been fragmented. Multiple laws, rules, programmes, regulatory bodies along with national and state level advisories participate in the response. The Epidemic Diseases Act has been a subject of debate as calls for government action grows. Instead of building a public health framework, the limited purpose of the Epidemic Diseases Act is for the states to take special measures for 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 this law. 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 law nor the regulations under it describe procedural guarantees against abuse of state coercion.

Using examples of Indian states and past utilisation of the regulations, it is seen that the states can realign 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.

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 current fragmented response framework through programmes and missions.

This is required to increase the accountability of the government to its people. It is imperative that such a law is passed by the union government while providing states power to utilise their public health framework.

 

REFERENCES

• https://www.business-standard.com/article/current-affairs/to-fight-a-pandemic-like-covid-19-india-needs-overarching-healthcare-laws-120032201137_1.html

• https://www.indiatoday.in/india/story/coronavirus-pandemic-covid-19-precautions-symptoms-global-impact-complete-guide-1657761-2020-03-20#coronaviruspandemic1

• https://www.barandbench.com/