INTRODUCTION
Epidemics have always been a part of our human lives, though they are largely caused by the actions of humans only. This article culminates the new vision with the distinctive responsibilities and frameworks through which we, today are in a better position to fight this pandemic. Especially, a country like ours has seen many such havocs like Spanish Flu in 1920, Cholera pandemic in 1961, Smallpox epidemic in 1975, Dengue and Chikungunya outbreak and Swine flu in recent years. So, over the last 100 years, we have a tumultuous history of pandemics and from that, we have carved out social and legal measures and dimensions, in order to tackle and to put the contagion in the bud. Though, there may still be some minute inadequacies in the domestic and international laws, but still, we, as a global family, are today in a better framework as compared to the period of the 20th century.
International Conventions
Firstly, at the time of Spanish Flu, there was no specific international organization to closely monitor such pandemics. At that time, there were no public health measures adopted to mitigate the pandemic. Whereas, today, the World Health Organization, which was formed way back in 1948 is adopting all the possible course of actions to prevent the spread of the disease. The WHO has some great atypical powers. Article 2 of the Constitution of WHO delineates the functions that the organization performs. Article 21 and 22 elucidates the binding nature of all the regulations, even on those who have not ratified the Charter. It has created an aura of collective response and ushered a space for achieving goals for the international community. In this respect, International Sanitary Regulations were adopted in 1951, which were re-framed as International Health Regulations[1] to broaden the scope and veracity of various outbreaks, including the biological, nuclear and chemical occurrences. Article 2 of IHR specifies and sets out the purpose, stating that these are meant to control, prevent and provide a public health response to the international spread of diseases. The IHR mandates that each country should develop and strengthen the mechanism to detect and report such events. In this scenario, this norm was violated by China by suppressing the information[2] on the outbreak. The most pertinent guideline added is in Article 3, which says that “all the guidelines must be implemented by respecting the human as well as fundamental rights of the persons.” This Article also upheld the protection of human rights in a broad way and is directly relevant for a pandemic scenario. Article 32[3] sheds light on this facet by focusing on the travellers saying that they should be treated with all courtesy and proper assistance should be provided to them regarding food, water, clothing, baggage and medical treatment, if needed. No discrimination should be done on the grounds of gender, ethnicity or religious concerns. It is a good shadow of the practice developed by the WHO over the decades in order to precisely deal with such situations. These rights are also directly in consonance with the human rights provided under the International Covenant on Civil and Political Rights (ICCPR)[4], and some derogations i.e. the limitations to restrict some rights are also encapsulated which can be applied only after a multi-step inquiry. Part III formulates and tells about the rights which enjoy absolute legal protection. These are right to life, the abolition of death penalty, the prohibition of torture or any form of degrading treatment, the prohibition of arbitrary arrest or detention and the prohibition against the retrospective operation of criminal laws.
EPIDEMIC DISEASES ACT, 1897
In addition to these international bodies doing their work, we have our domestic laws to tackle the dangerous pandemics. The Centre invoked the Epidemic Diseases Act, 1897 to debilitate[5] the contamination. It was evolved to control the plague that broke out in the then Bombay State. It is a short and crisp Act of 4 Sections. Section 2A of this Act gives power to both the Central as well as State governments to take special measures “if it thinks that the ordinary existing provisions of the law are insufficient to achieve the purpose, for which they are formulated.” During the early 19th century, it was criticized because of its abusive use by the British[6] government, such as punishing Bal Gangadhar Tilak with rigorous punishment for 18 months. But, if we talk in today’s context, it has proved to be quite fruitful for the government to combat the virus. Section 3 of this Act grants the legal authority to the governments to punish those who disobey the regulations. Such a person will be liable for a punishable offense under Section 188 of the Indian Penal Code. Section 4 immunes the authorities from the legal proceedings if anything is done in good faith or credence. In the last 20 years, this act has been invoked twice or thrice, like in 2015 to deal with malaria; in 2009 to tackle swine flu, and has yielded good outcomes But there are certain escape clauses under this act, as it does not list down any concrete definition of epidemic. Moreover, it took into consideration only the movement via ship. This act has also failed to discuss the measures that need to adopted, to combat the pandemic like transport of essential goods and services, vaccination, and a system for keeping a track of the affected areas, etc. The major point missing or lacking was regarding the protection of healthcare personnel. The attacks against healthcare personnel were increasing rampantly and their duty towards the masses was impeded to a large extent. Hence, it was necessary to take a grip of the situation and implement a zero-tolerance policy for any type of violence committed against the healthcare workers. This led to the passing of Epidemic Disease (Amendment) Ordinance[7] 2020. Section 1A has been inserted in it and embodies a detailed view of the “acts of violence.[8]”, entailing harassment; injury; intimidation; or danger to the life of such healthcare personnel; obstruction in the discharge of his duties; loss or damage to any property or documents in the custody of such healthcare personnel. It also tells about[9] the punishment which may not be less than 3 months and may extend to 5 years; and with fine, which shall not be less than fifty thousand rupees and may extend to two lakh rupees. The Amendment has done away with many issues, making the offences under it a cognizable and non-bailable offence.
PENAL LAWS
There are certain penal provisions that have been enforced to create a deterrence among the people. The authorities have the power to imprison anyone under Section 269, if a person is found negligent or is doing anything which results in spreading the virus. Section 270 prescribes the imprisonment of 2-3 years for those, who spread the disease, voluntarily or involuntarily. Section 271 is unique and says that whoever, knowingly disobeys the rule will face criminal action. It explicitly states that “the person who abstains from abiding by the regulations will be punished with imprisonment for a month, or a fine of two hundred rupees or both in certain cases, and if such disrespect intends to cause danger to the life of an individual, or his health or safety, or may lead to riot or affray, shall be punished with imprisonment of six months or with fine of one thousand rupees or both.
DISASTER MANAGEMENT ACT, 2005
Not only the Epidemic Diseases Act, but the Disaster Management Act[10], 2005 has also invoked and the powers of home ministry have been delegated to the Health Ministry, as the Health Ministry can handle it in a better way regarding the emergencies and is equipped with proper data. Section 2 of the Act defines disaster in a broad way, incorporating any catastrophe, mishap, calamity or grave occurrence, arising from natural or man-made causes. Section 3 speaks about constituting a National Disaster Management Authority to lay down the policies regarding the handling and to coordinate the implementation of policies in a better and efficient way. Within this extent, the National Executive Committee is also formed to assist the Disaster Management Authority in the preparedness at different levels. The finest part of this Act is the guideline regarding keeping checks and balances on the proper availability and dispensing of sanitizers, masks, on which there is always a possibility of hoarding by the sellers. Hence, as compared to the aforementioned act, this act gives a broad definition of disease and also jots down the safety measure that needs to be taken to conquer the pandemic. But despite of all this, we cannot say that it is a full-fledged act, as nowhere in the definition pandemic or epidemic has been mentioned. In 2017 also, the government came up with the draft of Public Health (Prevention, Control and Management of Epidemics, Bio-terrorism and Disasters) Bill, under which public health measures were given in Section 3. Section 3(d) and 3(e) gives specific order regarding isolating and restricting the movement of a person or class of persons, suspected to be exposed to such disease and provides for the proper medical examination to be held. Though the bill could not become an act, yet those guidelines have now proved to be beneficial as the preventive measures given there are now reflected in the guidelines issued by the Ministry of Health & Family Welfare[11], like the use of face covers, disinfection procedure, self- monitoring of health, frequent sanitization and the avoidance of unnecessary travel and many more. Special emphasis and mandates have now been imposed on all those who have travelled by flights. Those who have a travel history of going abroad when COVID-19 started, are to be kept under surveillance, as per the Aircraft (Public Health Rules), 1954[12].
JUDICIAL ACTIVISM
Lastly, the Watchdog and the Guardian of our Constitution is also reaching out to take suo-moto cognizance of several matters. One of the most recent is regarding the miseries of stranded laborers. The Apex Court has directed the Centre to provide adequate shelter, food and make arrangements for their return to their villages. The Apex Court came down heavily on the Centre and mentioned about the newspapers and the media reports being full of problems of workers. The passive response by the SC in this time of humanitarian crisis speaks a lot. The second most significant direction is regarding the overcrowding of prisons. The Apex Court directed the jails to ensure proper screening of new jail inmates and to observe social distancing as closely as possible in the prisons. Their medical examination is made mandatory on a regular basis. Thus, the Apex Court is giving the light of the day in order to ensure the people that the doors of justice are always open for them.
EMPLOYMENT GENERATION SCHEMES
Undoubtedly, both the Spanish Flu and Covid 19 have a devastating effect on the GDP of the nation. One such major hit was unemployment. At the time of Spanish Flu the unemployment rate rose from 3.2% to 24.9%[13]. Thousands of people have been unemployed during both the crisis. But presently, we are in a superior position due to various employment schemes initiated by the Government of India like MGNREGA, Prime Minister’s Employment Generation Programme (PMEGP), etc. These schemes provides fixed employment to every rural household. During these unprecedented times, such schemes are helping the economically weaker sections, to sustain their livelihood.
CONCLUSION
From the above-mentioned views, we can believe that we, today are in a better position to control this communicable disease because we have changed a lot in public health context and legal context. The Acts that we have are comprehensive and integrated which are based and accumulated on the basis of earlier outbreaks, people’s response and are best suited for the rights oriented approach. The ease with which it is controlled is highly appreciable as compared to the laws during the time of Spanish Flu, when we were utterly lacking in legal and medical system, due to which 500 million people died, which was close to the 1/3rd of the world’s population at that time. But, better provisions does not imply that we are fully prepared, there are certain lacunae that need to be filled. In the absence of concrete law, we still lack a proper regulatory framework. With the evolution in time, there is an urgent need to reform the 123 years old law. Till then, it becomes the duty of the citizens to cooperate with the existing government and together put an end to this growing crisis. We should respect our laws as believing in the laws is a beginning and making them work is gaining progress.
[1] Volterra Fietta, COVID-19 and the WHO’s International Health Regulations, LEXOLOGY, Mar. 20, 2020, available at https://www.lexology.com/library/detail.aspx?g=c2edb745-5f18-4cc7-8d13-00acf8ebdf10 (Last visited on 26-05-2020)
[2] Shadi Hamid, China is Avoiding Blame by Trolling the World, THE ATLANTIC, Mar. 19, 2020, available at https://www.theatlantic.com/ideas/archive/2020/03/china-trolling-world-and-avoiding-blame/608332/ (Last visited on 27-05-2020)
[3] Article 32, International Health Regulations
[4]International Covenant on Civil and Political Rights (ICCPR), available at https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwjRp4O7_tPpAhW5zjgGHTiNC_kQFjAAegQIARAB&url=https%3A%2F%2Fwww.ohchr.org%2FDocuments%2FProfessionalInterest%2Fccpr.pdf&usg=AOvVaw3rDTlpDOK8g2We2nUpVWdt (Last visited on 28-05-2020)
[5] ‘COVID-19: Understanding Epidemic Disease Act, 1897, LAW STREET JOURNAL, Mar. 24, 2020, available at https://lawstreet.co/speak-legal/understanding-epidemic-disease-act/ (Last visited on 29-05-2020)
[6] Ibid
[7]Epidemic Diseases (Amendment) Ordinance 2020, available at https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwiZiqf0gNTpAhVZxzgGHSc1DnYQFjABegQIAxAB&url=http%3A%2F%2Fegazette.nic.in%2FWriteReadData%2F2020%2F219108.pdf&usg=AOvVaw3-JqDEx6yZPKuwhh33yKTD (Last visited on 24-05-2020)
[8] Section 1A, Epidemic Diseases (Amendment) Ordinance, 2020
[9] Section 3(2), Epidemic Diseases (Amendment) Ordinance, 2020
[10]Disaster Management Act, 2005, available at https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwj_s-O1iNTpAhUYwzgGHe7RDOYQFjAAegQIAxAB&url=https%3A%2F%2Fwww.ndmindia.nic.in%2Fimages%2FThe%2520Disaster%2520Management%2520Act%2C%25202005.pdf&usg=AOvVaw0bI3xpV7zW5lwie1_inVec (Last visited on 25-05-2020)
[11]Guidelines on preventive measures to contain spread of COVID-19 available at https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjqvvOohtTpAhUhzjgGHcVkC_4QFjAAegQIBRAB&url=https%3A%2F%2Fwww.mohfw.gov.in%2Fpdf%2FGuidelinesfornotifyingCOVID-19affectedpersonsbyPrivateInstitutions.pdf&usg=AOvVaw3EQrkOLV_uEUuiCIu34W7_(Last visited on 01-06-2020)
[12]Aircraft Public Health (Rules), 1954, available at https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwjkxcLniNTpAhU7yDgGHRbkAxgQFjAAegQIARAB&url=https%3A%2F%2Fwww.ihrpoe.co.in%2Fpdf%2Frules%2FIA(PH)%2520Rules1954.pdf&usg=AOvVaw0wqurJmTT8dcT7dVRtt4PU (Last visited on 31-05-2020)
[13] Peter Cohan, How COVID-19 Crunch Compares To Spanish Flu, Great Depression, FORBES, 6 April 2020, available at https://www.forbes.com/sites/petercohan/2020/04/06/how-covid-19-crunch-compares-to-spanish-flu-great-depression/#5006993c1798 (last accessed on 6 May, 2020).
About authors –
This article is authored by Akshat Jaithlia and Aaditya Mootha, Akshat Jaithlia from Rajiv Gandhi National University of Law, Punjab. He has good communication and debating abilities. His critical and analytical skills to research upon legal matters, differentiates him from others. Aaditya Mootha from Ram Manohar Lohiya National Law University, Lucknow. He has good communication and debating abilities. His critical and analytical skills to research upon legal matters, differentiates him from others.
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