What Should a Public Health Emergency Law for India Look Like?
A White Paper
Background – Public Health Emergency Laws
Public health is a field in which the role of the law may not be immediately apparent. Nevertheless, public health administration and governance play a central role in the ability of populations and governments to prepare for, and respond to, public health emergencies (“PHE”). The role of the government in PHE preparedness and response is derived from the moral and ethical consideration of protecting the public interest, and from the State’s authority and responsibility as a sovereign entity, to enact legislation and to promote social welfare.
The fundamental right to health and related legislative powers, together with international legal obligations, create a Constitutional mandate for the Indian State to take legislative and administrative action to promote and protect public health, especially in the context of PHE preparedness and response.
Lawrence Gostin’s theory of public health law outlines three key principles as the basis of any public health legislation. These are (a) ‘Duty’ – positive duties imposed on government and public health agencies to ensure that their mandate and responsibilities are clear, (b) ‘Power’ – government and public health authorities being adequately empowered to undertake appropriate regulatory measures and achieve public health objectives, and (c) ‘Restraint’ – safeguards and remedies in the law to prevent government overreach and protect individual rights.
Thus, Gostin’s Duty-Power-Restraint framework and Robyn Martin’s conception of a normative role for the law in public health, read with international standards and World Health Organisation guidelines, require a country’s PHE legislation to fulfil various legal functions and normative values. These include good governance, social control, integration of human rights, accountability, transparency, and inclusiveness, among others.
This paper’s review of the legislative approaches of six sample countries (Brazil, Canada, South Africa, South Korea, the United Kingdom, and the United States of America), using the analytical framework described above, reveals that most of them: (a) identify a specific set of public actors to respond to PHEs, (b) provide for the framing of PHE-specific regulations, (c) allow for certain restrictions and mandatory measures which may suspend some rights and liberties, (d) provide for penalties for individual violators but not for failures of duty by public officials, and (e) require actions to be proportionate to the potential for harm. Further, some of these laws also provide protection to vulnerable populations, while some contemplate relaxing regulatory requirements for drugs and medical devices during PHEs.
India’s Legal Framework for PHEs
India does not have a single, consolidated PHE preparedness and response code. Legal provisions relating to PHEs are scattered across a range of central and state laws, including laws focussed on epidemics and infectious diseases, disaster management laws, public health legislation, and criminal laws.
Two central laws – the Epidemic Diseases Act and the Disaster Management Act – dominate the legal framework on PHEs. When analysed using the duty-power-restraint framework: (a) the Epidemic Diseases Act only confers powers, without creating obligations or accountability or imposing restrictions on government (these themes were largely replicated in state regulations issued under the Act during the Covid-19 pandemic), and (b) the Disaster Management Act provides for government powers and duties to manage disasters, but is not a PHE-focussed law, and therefore, does not provide for PHE preparedness and response measures.
Past legislative proposals relevant to public health emergencies range from a targeted PHE law, to a general rights-based legislation, and a comprehensive state law on public health. Of these, the central PHE-specific bill is extremely limited in scope in that it only deals with the power component of the duty-power-restraint framework.
Observations from India’s Response to the Covid-19 Pandemic
Several of the events that unfolded during the Covid-19 pandemic further highlight the shortcomings of the existing Indian PHE framework; this paper discusses the following aspects of India’s response to the pandemic:
- Containment – the combined framework of existing legal provisions and periodic executive orders appeared to cover the basic aspects of containment measures, but the outcomes included inconsistent implementation across states, confusion and misinformation, and frequent violations by the public;
- Quarantine and Isolation – contact tracing efforts fell short because of capacity constraints, healthcare workers went on strike to protest the lack of protective equipment, people actively avoided and absconded from unhygienic and ill-equipped isolation and quarantine centres, and digital monitoring efforts were legally opposed for their lack of privacy safeguards;
- Testing – following a delayed start, the testing strategy eventually instituted was restrictive and likely masked the actual incidence of the disease in the population in the initial months; during this time, the exclusion of the private sector from testing exacerbated capacity constraints, and the administration see-sawed on the subject of pricing, leading to litigation;
- Authorities – ambiguity and opacity regarding the statutory authority, functioning, and respective roles of the central bodies tasked with orchestrating the pandemic response raised questions as to the legal basis and authority of their directives, and required judicial intervention;
- Treatment – inconsistent and premature advisories regarding treatments and protocols put patients and healthcare workers at risk; vagueness and opacity surrounding the regulatory procedures followed for approval of vaccines led to public concerns regarding their safety and efficacy; in the absence of appropriate protocols, attempts to arbitrarily regulate pricing, and failure to provide government funding options for treatment in private healthcare facilities resulted in public hardship when seeking treatment, and once again required the courts to intervene.
Need for Dedicated PHE Legislation in India
While it is impossible to draw clear causal links between the bottlenecks in the response discussed above, and the absence of a more comprehensive PHE law, the importance of clarity and certainty through a legal framework on PHEs cannot be overstated. The existing Indian legal framework on PHEs therefore needs to be re-evaluated to address its various shortcomings and incorporate the necessary aspects of a modern PHE legislation in a manner appropriate to the Indian context. The various issues that should be considered include:
- the scope of PHE legislation at the centre – whether it is restricted to international obligations or includes domestic administrative responsibilities;
- the need for state-specific legislation, and the principles for division of responsibilities between the different tiers of government;
- the capacity of the existing administrative infrastructure to handle PHE preparedness and response activities, demarcation of responsibilities, and institution of coordination mechanisms;
- structuring of legislation – the content and levels of specificity in primary and secondary legislation, and the status of PHE protocols vis-à-vis the law;
- the structure, functions, and purview of monitoring and accountability mechanisms;
- the nature and framing of rights under a PHE law, including the necessary level of specificity, the rationale for inclusion of corresponding duties, and the nature and accessibility of remedies for violations.
This exercise will require expertise and consultation with appropriate stakeholders from the government, public health and policy sector, civil society, and vulnerable groups that have been particularly affected by the Covid-19 pandemic.
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About the Authors
Akshat was a Research Fellow at Vidhi. He has advised on projects relating to the regulation of the digital economy, privacy, federalism and healthare. His areas of research interest included constitutional law, gender and sexuality, family law and public health.
Kim D’Souza is a Senior Resident Fellow at Vidhi. She is currently working on research relating to public health legislation. Prior to Vidhi, Kim worked in real estate and conveyancing law and general corporate advisory for six years, as well as advising organizations in the social sector on contracts and regulatory compliance. She has an LL.B. from Government Law College, Mumbai, and a Bachelor’s in Life Sciences and Biochemistry from St. Xavier’s College, Mumbai.
Shreya was a Senior Resident Fellow working in the area of Health and Education. She worked on research projects related to public health, patient rights and inclusive education. Her areas of interest include Public Health, Right to Education, Constitutional law, Cyber law, and the intersection of Health and Technology. Shreya graduated with a B.A. LL.B. (Hons.) from Hidayatullah National Law University, Raipur in 2018. She has been published in newspapers and websites like The Hindu and The Wire. She has co-authored the Centre for Civil Society’s ‘Compendium of laws to be repealed in Chhattisgarh’. In collaboration with the Centre for Communication Governance (CCG), she submitted an academic paper to MEITY on ‘Non-Consensual Obscene Content and Indian Law’. Prior to joining Vidhi, she has interned with policy organisations like CCG and the Land Rights Initiative at the Centre for Policy Research, in the Chambers of Senior Advocate Prashant Bhushan, and with law firms like Karanjawala & Co and Samvaad Partners.
Yogini is a Research Fellow working in the area of Health and Environment. Yogini completed her B.A. LL. B. (Hons.) from the West Bengal National University of Juridical Sciences, after which she pursued the Young India Fellowship at Ashoka University. Prior to joining Vidhi, Yogini worked at the Centre for Policy Research on the subject of Urban Sanitation. Yogini is interested in studying the workings of the law in the larger social, economic, and political contexts, especially with respect to health and environment and has published her work on this in various online media outlets and blogs.
Dr. Dhvani Mehta {B.L.S. LL.B. (University of Mumbai); BCL, D.Phil (Oxon)} is a Co-Founder at Vidhi and Lead, Health. She has worked specifically on research projects on environmental clearances, the National Green Tribunal, organ transplant laws, end of life care, and pharmaceutical and medical device regulation. She has appeared in the Supreme Court of India in petitions filed by Vidhi on advance medical directives and discrimination against persons affected by leprosy. She has authored chapters on the implementation of environmental judgments and healthcare corruption in India. Dhvani read for a doctoral degree at the University of Oxford on a Rhodes Scholarship, where she was Chairperson of Oxford Pro Bono Publico and an editor of the Oxford Human Rights Hub blog. Her doctoral thesis explores the idea of an environmental rule of law in India and was cited by the Supreme Court of India.
