This article titled ‘Combating the Pandemic Laws.’ is written by Qazi Sami Uddin and sheds light on the loopholes in laws related to coronavirus in India.
I. India and its fight with coronavirus
Today the world is at the highest state of emergency due to the outbreak of the SARS-CoV-2 virus which is declared to be a pandemic by the World Health Organization on March 11, 2020. According to WHO “A pandemic is the worldwide spread of a new disease”.1 The SARS-CoV-2 virus causes the disease of ‘covid19’ which is the most lethal type of disease in mammals and birds and formed the class of coronavirus.
The name “coronavirus” is derived from the Latin word corona, meaning “crown” or “wreath” this word is first used in 1968 by an informal group of virologists in the journal Nature to designate the new family of viruses.2 This novel coronavirus was first traced on November 17 in the Hubei province of Wuhan city of China.
Which is said to be originated from bats to pangolins and from them transmitted to human beings. Some scientist says it to be a biological weapon which China is preparing to gain control of world economy. The United States called that the outbreak was covered up and deaths in China are more than the official toll. Apart from all this, the current situation is that the deadly outbreak had caused more than 1.60 lakhs death, hence the situation is quite alarming and demands a concentrated effort.
From an international perspective right to health is the subject matter of various international conventions and declarations such as Article 25 of the Universal Declaration of Human Rights enunciating the principle of “person’s right to a standard of living adequate for the health and well-being of himself and of his family”3 and Article 12 International Convention of Economic Social and Cultural Right which talks about “prevention, treatment and control of epidemic and other diseases”.
The word ‘health’ is defined by World Health Organization as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”. Further right to health may be defined as “the enjoyment of the highest attainable standard of health”.
In the wake of a public health emergency, numerous countries had evoked various laws for the containment of the virus. So goes with our country in India the subject of public health and sanitation, hospitals and dispensaries come under state list as envisaged under schedule 7th of Indian constitution apart from this the concurrent list also point out for the Prevention of the extension from one State to another of infectious or contagious diseases or pests affecting men, animals or plants, besides this, there is no specific and well-settled legislation.
And in order to give direction for the prevention of virus central government has invoked the 123-year-old Epidemic Disease Act 1897 which was drafted by the British government to stonewall the bubonic plague that devastated life in Bombay in 1896 and aims “for the better prevention of the spread of Dangerous Epidemic Diseases” section 2 of the Act gives power to the state government to take all necessary measures including quarantine to prevent the spread.
Moreover, section 2A of the said Act empowers the central government to take measures and prescribe regulations allowing for the inspection of any ship or vessel (aircraft) leaving or arriving at any port and for the detention of any person arriving or intending to sail.4 Violation of any of the above provisions may cause punishment for 1 month and a fine of 200 rupees or both. Since this act lacks in scope and applicability central government on 14 march 20205 declared coronavirus as a ‘notified disaster’ which paved the way for the Disaster Management Act 2005 this act aims for “effective management of disasters and for matters connected therewith or incidental thereto”.6
This act provides three things:
- Legal framework for movement and advisory jurisdiction of the union on state government
- Action against rumour-mongering
- Access to an emergency fund.
Section 47 of the DM act 2005 provides for the national disaster mitigation fund Section 51 provides for a penalty of 1-year imprisonment or fine or both if found obstructing any officer or employee from performing their duty and if such obstruction leads to loss of life then penalty would be 2 years of imprisonment.
Section 52 of the Act states that people intentionally making false claims to get benefits from the government can be imprisoned for up to two years. Section 54 provides for one year’s imprisonment for anyone circulating a false alarm.
Nowadays we are frequently hearing certain terms namely lockdown, quarantine and isolation. Let us throw some light on these terms too. Lockdown is not a legal term but means to describe a situation where free movement of goods is restricted with exception of essential items declared by the government of India under lockdown generally police cannot arrest a person for violation of lockdown without prior permission of court so in order to attain legal sanctity it is enforced keeping in view of sections 188, 269, 270, 271 of Indian Penal Code and section 144 of Criminal Procedure Code.
The words quarantine and isolation are defined under Indian Aircraft Public Health Rules 1954 and Indian Port Health Rules 1955. Quarantine means the restriction of activities and/or separation of suspect persons from others who are not ill or of suspect baggage, cargo, containers, aircraft or conveyances, facilities, goods and postal parcels in such a manner as to prevent the possible spread of infection or contamination.
Isolation means separation of ill or contaminated persons or affected baggage, containers, aircraft or conveyance, facilities, goods or postal parcels from others in such a manner as to prevent the spread of infection or contamination. Apart from these statutory legislations various judicial pronouncements also act as guidelines for the protection of public health. In the case of C.E.S.C. Ltd. v. Subhash Chandra Bose , 7 SC says the term health implies more than an absence of sickness medical care not only protect against sickness but also ensures stable manpower for economic development. The maintenance of health is the most imperative constitutional goal. In Kirloskar Brothers Ltd v. Esi Corporation 8 SC says the Right to health and medical care is a fundamental right of workmen under article 21 r/w article 39E 41 and 43.
Today the current situation is that we don’t have laws to enforce mandatory quarantine for a symptomatic person and strict compliance of lockdown is also missing so for the enforcement of this governments had to resort to National Security Act 1980 which aims to provide preventive detention in certain cases but this could be more catastrophic if we are dealing with a communicable disease like the covid19. Government should also look towards the Armed Forces (Special Power) Act 1958 for counter-insurgency areas.
Lack of PPE kits for healthcare workers no legislation for the protection of the rights of healthcare personal lack of basic necessities for poor people is another matter of great concern.
Moreover Supreme Court in its decision of Justice K.S. Puttaswamy and anr. v. Union of India and Ors9 declared the right to privacy as a fundamental right keeping this view in mind the privacy rights of the person infected with covid19 is a matter of great discussion. Although WHO issues certain guidelines for states to protect its citizen from this disease, an urgent ordinance to curb these problems is the need of the hour. The ordinance would not only curb these problems but also helps in boosting the economic slow-down.
- WHO ‘ Emergencies preparedness response’ ( 24 Feb 2010), Available Here, accessed on (15 April 2020)
- Wikipedia ‘Coronavirus’, Available Here, accessed on 16 April 2020
- Wikipedia ‘Right to Health’ Available Here, accessed on 17 April 2020
- Epidemic Diseases Act 1897, Available Here.
- FP Staff, ‘The Coronavirus Outbreak Explained’, Firstspot March 26, 2020, Available Here.
- Disaster Management Act,2005, Available Here.
- E.S.C. Ltd. v. Subhash Chandra Bose ,AIR 573, 1991 SCR Supl. (2) 267
- Kirloskar Brothers Ltd v. Esi Corporation ,JT 1996 (2), 159 1996 SCALE (2)1
- Justice K.S. Puttaswamy and anr. v. Union of India and Ors, Writ Petition (Civil) No 494 of 2012