Need of the hour
At a time when India’s states are being forced to make do with the outdated ‘Epidemic Diseases Act’ of 1897 to address the present crisis, a new public health bill is required
The monsoon session of the Parliament is all set to begin by the first week of September 2020. Both Lok Sabha and Rajya Sabha secretariats have started preparatory work to convene the sessions by following social-distancing and other COVID-19 protocols.
There is no doubt that the COVID-19 pandemic has strained the health systems of India as well as all developed/developing countries of the world. The pandemic has exposed the deep vulnerabilities and glaring gaps of India's healthcare system and domestic laws pertaining to epidemics. The policymakers' have realised that budgetary allocations towards public health and healthcare services is much less than most other countries of the world.
Since there was an absence of rationally structured legislation, the Central Government in the month of March advised states to invoke the 'Epidemic Diseases Act' of 1897 to handle the pandemic. The steps that the Central Government has taken are based on mainly administrative order as there was no legislation which addresses such disasters.
One of the biggest factors for the weak public health is the absence of a statutory framework that guarantees a Fundamental Right to Health. The Constitution of India does not expressly guarantee a Fundamental Right to Health. However, there are multiple references in the Constitution to public health and on the role of the State in the provision of healthcare to citizens.
The demand for Right to Health as a Fundamental Right is not wrong and untimely rather the Government may try to bring healthcare under a legislation. Strong health laws will certainly help build societal resilience to future pandemics and public health emergencies. We have learned enough in the last six months and thus, it is critical that the Right to Health be implemented, using the principles of transparency, proportionality and solidarity.
It is strange to observe that the most widely used law regarding pandemics in India was enacted during British rule. The 'Epidemic Diseases Act, 1897' has been enforced for COVID-19 but has an outdated scope of handling emergencies of this scale and complexity. In this context, the government of the day must design programmes explicitly to improve the enjoyment of all people to the concept of the Right to Health. The current situation has provided us with an opportunity to improve our healthcare system and future-proof pandemic laws. Hence, the need of the hour is to introduce new public health legislation. The treasury bench may study the lapsed 'Public Health Bill 2017' and refurbish it to meet the current requirements. Bringing new legislation is of utmost relevance today to provide a foundation for public health prevention, healthcare services and health solidarity to meet such future challenges.
In the year 2017, the Ministry of Health and Family Welfare, Government of India put the draft 'Public Health (Prevention, Control and Management of epidemics, bio-terrorism and disasters) Bill, 2017' in the public domain and sought comments from various stakeholders. The bill proposed to empower state and local authorities to take appropriate actions to tackle public health emergencies like epidemics and bioterrorism. States and local bodies under the bill can take multiple measures, ranging from quarantining people to decontamination of areas, destruction of animals or birds and surprise inspections during any public health emergency.
The 2017 bill listed 33 epidemic-prone diseases which include anthrax, bird flu, dengue, HIV/AIDS, yellow fever, rabies, plague, measles, kala-azar, among others. The bill also listed potential bioterrorism agents including bacteria of typhoid fever, cholera, plague among others and viruses including ebola, dengue, Japanese encephalitis and others. This 2017 Bill had clear cut definitions for the terms epidemic, isolation, quarantine, social distancing, public health emergency, public health emergency of international concern, ground crossing, disinfection, disinfection, deratting and decontamination but the irony of the fact that the- bill did not get adequate support and thus could not see the light of the day and lapsed. It could not gather support as concerns were raised over the sweeping powers it envisaged for the Government to subject a person to compulsory treatment even without consent. The Bill also provided for repealing the old Epidemic Diseases Act of 1897.
The Epidemic Act 1897 was drafted by the British administration to prevent the outbreak of bubonic plague. The bubonic plague recorded the first case in Bombay and the disease quickly spread swiftly to other parts of the city, and the death toll was estimated at 1,900 people per week through the rest of the year. It is reported by numerous experts that by the year 1905, the death toll increased to above 10 lakh. The Act, considered as one of the most draconian pieces
of public health legislation, gives sweeping powers to government authorities.
What we need today is sensitive care, timely action, good social infrastructure and benevolent care for the vulnerable segments, to face the current challenge. It is not true that the Indian Government did nothing since independence. The Government did realise and tried to bring new legislation but in vain. Perhaps there was an absence of political will and knowledge to foresee such disasters. In the past in the year 1955 and 1987, the Government developed the 'Public Health Act', but it failed to garner the support of the states. The 'National Health Bill, 2009' aimed to establish a comprehensive legal structure by including essential public safety programmes and obligations in public health emergencies through the successful collaboration between the centre and the states but this bill could not become an act. The Bill intended to provide for protection and fulfilment of rights in relation to health and wellbeing, health equity and justice, including those related to all the underlying determinants of health as well as health care and for achieving the goal of health for all, and for matters connected therewith or incidental thereto.
The existing constitutional guarantees, legal precedents and global commitments form a solid basis for a fundamental right to health in India. A legislatively guaranteed right will certainly make access to health legally binding and ensure accountability. The Parliament and lawmakers should utilise this opportunity and introduce 'Public Health Bill, 2020' to empower states and Central Government to take necessary actions to handle such pandemics. In pursuing a rights-based approach, the Government must ensure a balance between the Government's role in maintaining public health and ensure the enjoyment of all people to the right to health.
The writer is the President, Manavadhikar Samajik Manch, a New Delhi based organisation which works in the areas of promotion and protection of human rights. Views expressed are personal