Need for Public Health Law
World is still battling the COVID 19 pandemic which started early last year. India took early precautionary measures and announced its first 21 days lockdown[1]. Archaic Epidemic Disease Act, 1897 (hereafter referred as EDA) was invoked along with the provisions of Disaster Management Act, 2005 (hereafter referred as DMA).
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The EDA is a brief and limited colonial Act which was legislated to control plague. Â This has few good provisions for protection of healthcare workers but major lacunae in this act is it fails to define the roles of the various levels of government, describing the rights and responsibilities of the public, or provisions regarding asymptomatic patients and their quarantine procedure.
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On 14th March the Union Government declared COVID-19 as notified disaster[2]. The DMA is clearly not meant to control epidemic situation, disaster is defined as, “a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man-made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected areaâ€[3]. The definition of disaster does not include epidemic in its scope. Perhaps it is interpreted flaccidly to use in this public health emergency. Due to absence of detailed legislation to deal with public health emergency provisions of EDA and DMA are invoked to control.
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Need of Comprehensive Public Health Law:
Along with above two principal legislations mentioned above, Indian Penal Code,1860, Indian Ports Act, 1908; India Aircraft (Public Health) RulesÂ; Essential Commodities Act, 1955; Livestock Importation (Amendment) Act, 2001; Drugs and Cosmetics Act, 1955; Competition Act, 2002 along with state legislations and regulations  were in force to achieve control over spread of COVID-19. Having been forced so many legislations, government rules and regulations many issues remained unanswered. Issues such as rising prices of masks to unsold inventory of masks, ethical issues involved in patient treatment, rights of daily wage earners, right to privacy need some more attention.
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Seventh schedule of the Indian constitution clearly demarcates powers of the central and state government. As per the schedule Public health is the subject state list. Since March 2020 there have been waves of infection all over the country and each state has taken timely measures to control infections considering the situation in respective regions. But state governments are highly dependent on centre for resources. Hence to tackle any such public health emergencies, there is a need of uniform health law applicable to all states and union territories.
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India witnessed outbreak of Swine flu, Dengue, Chicken Gunea in last decade, but they were limited to some regions and the need of public health law was not sensed as much as it is today. Now it has been almost year that country is battling with COVID-19, there is major social and economic setback. Therefore, there is need of detailed public health legislation which prescribes rights and responsibility of public, healthcare workers, all frontline workers in the epidemic. The legislation which clearly allocate powers and duties of local, state and central government to tackle public health emergency. Suggest amendments in any other laws to deal with epidemic.
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Public Health Laws Around the World:
- Australia:
Australia operates under federal system of government created by common wealth constitution. Powers to make laws are divided between commonwealth government, state government, territory government and local councils. Each State and Territory has public health legislation which contains provisions related to managing risks to public health, such as the risks posed by communicable diseases like COVID-19[4]. In the Commonwealth Constitution, the only specific power which directly relates to public health is the Commonwealth’s power to make laws in relation to quarantine[5]. On 18 March 2020 in response to the COVID-19 outbreak in Australia, the Governor-General declared that a human biosecurity emergency exists. The declaration gives the Minister for Health expansive powers to issue directions and set requirements in order to combat the outbreak. This is the first time these powers under the Biosecurity Act have been used[6].
Therefore, it is evident that individual state public health laws and comprehensive biosecurity act are harmoniously used to deal with COVID-19 in Australia.
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- United Kingdom:
Legislation differs depending on which part of the United Kingdom you are in. Coronavirus legislation has been drafted according to how it applies in England, Wales, Scotland and Northern Ireland and that is how we have organised it on this page. Most coronavirus legislation is secondary legislation, which has been made under powers set out in primary legislation[7]. England, Scotland, wales and Northern Ireland already have primary public health laws of their own.
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Conclusion:
Definitely India succeeded in controlling the number of COVID-19 deaths by taking various precautionary measures however it took lot of energy and time to make time to time rules and orders. State governments were dependant on funds for managing this health emergency. Successful vaccination has started in the country and slowly we will win this battle. But now taking a lesson from this historic COVID-19 episode, India has to have its public emergency law ready to deal with future emergencies.
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[1]Government of India, Ministry of Home affairs, order no. 40-3/2020-DM-I(A), Orders prescribing lockdown for containment of COVID-19 Epidemic in the country. New Delhi, March 24,2020. Available at: https://www.mha.gov.in/notifications/circulars-covid-19 [2] India declares Covid-19 a ‘Notified Disaster’ available at :https://economictimes.indiatimes.com/news/politics-and-nation/india-declares-covid-19-a-notified-disaster/articleshow/74631611.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst [3] Disaster management act, Section 2(d), 2005 available at: https://indiankanoon.org/doc/398597/?__cf_chl_jschl_tk__=1352aedf57cf1833724dfe8f45911bd72826e4ff-1614500258-0-AQpAxf9Gl5vYRMC-sTAPVAiMHpUOzq64ddDxMwBvZrzWGi-gIIk-ZKB1rBhKCi3VNtSyGqgKBQARCwwkuxRqQj7m_CgLIAjdNbp2OBzCTDgwJ7Y1642ecOOZKWKbKochWiGf4XVeDYgC42XDFwUp6h5Wnxp4CBTUYPOIiCNklC7FRirnKwCwgTYMErX4SgJNChg9sReZ-KQ6eT_IhIdy3JJ-OTeM1cOeUnBkXCtEiFz7qllWAnEx6x-Tt349RXZH9IbKqVIn9Rgm5aeEyuimUWdfuibWFdFkaMYFWFxJ3M_D70c25iJJIDHikEaNATjV_e4ku0OgX5ryW14doTcyPWIt0dmwMlV5sXmPXMGRa8681ao4d2zappQ1S4AI29oSHQ [4] Russel Kennedy, The legal framework helping to control and prevent the spread of COVID-19 in Australia, https://www.lexology.com/library/detail.aspx?g=05c3e38b-1934-492f-a04d-2737925145ba (last visited Feb 28, 2021.) [5] Ibid [6] Howard Maclean & Karen Elphick, COVID-19 Legislative response—Human Biosecurity Emergency Declaration Explainer, March 3, 2020. Available at: https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/FlagPost/2020/March/COVID-19_Biosecurity_Emergency_Declaratio [7] Coronavirus legislation available at: https://www.legislation.gov.uk/coronavirus
Author Name: Shilpa Bhide-Sahasrabudhe, a lawyer, currently based in Dublin,Ireland
