The ongoing Covid-19 pandemic has shaken the public healthcare systems of countries all over the world. On January 20, India reported its first case of the Coronavirus and, as of March 19, it now has 170 confirmed cases. Following the first few cases in India, central authorities swiftly introduced travel bans to restrict movement from international hotspots of the outbreak.
While many have lauded the Indian government's quick response, others suggest that it may have come too late. Critics point to the inconsistency in precautionary measures taken in different states, attracting questions about the accuracy of the numbers presented by the government.
Once the World Health Organisation (WHO) declared Covid-19 a pandemic, India invoked the Epidemic Diseases Act to contain the spread of the disease. However, the 123-year-old law attracted criticism for being outdated and, therefore, an insufficient tool to combat this threat to public health. The primary issue is that the act decentralises the powers that enable authorities to prescribe temporary measures to contain the spread of a pandemic, requiring the central government to rely on state authorities for adoption and enforcement.
The Epidemic Diseases Act merely gives the central government the power to “take measures and prescribe regulations for the inspection of any ship or vessel leaving or arriving at any port […] and for such detention thereof, or of any person intending to sail therein, or arriving thereby”.
As the powers under the act do not grant the centre the power to impose nationwide measures, the union health ministry called on states and union territories to invoke their powers under this act. The act provides states with a broader set of powers to “take, or require or empower any person, to take such measures and, by public notice, prescribe such temporary regulations to be observed by the public or by any person or class of persons as it deems necessary”.
In fact, the central government has called upon a whole host of laws to implement the existing restrictions, further indicating that there are currently insufficient and inappropriate provisions within the Indian legal system to deal with a global pandemic. The powers to control air travel, regulate imports and exports, and impose restrictions to contain the virus are derived from The Indian Ports Act, the Livestock Importation Act, the Aircraft (Public Health) Rules, Drugs and Cosmetics Act, and the Essential Services Maintenance Act. Further, the central government invoked the Disaster Management Act to empower itself to lay down nationwide guidelines and direct state governments and authorities to implement the required temporary measures. However, the law provides fragmented and incomplete powers to the central authorities, thereby obstructing the government from enacting policies that are necessary for urgent action.
The need of the hour is to centralise powers, especially for declared pandemics, such as Covid-19. While state authorities must retain certain powers, such as the power to implement measures to tackle state-specific epidemics, pandemics require special attention, particularly given the heavily interconnected nature of countries in the current era of globalization. Pandemics require expedited nationwide action by countries to prevent community spread across state borders, which can only be achieved by the centre.
With rising international and domestic migration and tourism, acknowledging the unique requirements of a pandemic is crucial. The Epidemic Diseases Act only empowers central and state governments to take measures to contain an outbreak once such a crisis has occurred. There is, therefore, a need for preventive powers to be given to the government to take preparatory measures.
The primary hurdle to instituting a pre-emptive disease control policy is delayed implementation by federal units. This can be solved by centralising power under the policy, thus circumventing delays in responses by individual states. To control the spread of pandemics, the “precautionary principle” must guide the government’s actions, under which the centre would be obligated to take preventive measures to protect public health even in the absence of a proven threat to the population, both within individual states and across the nation.
Another benefit of a centralised response to a pandemic is the expedited nationwide implementation of rules and regulations. The need for such provisions is highlighted by dissonant measures implemented by different Indian states in response to the coronavirus. For example, the Delhi government announced the closure of schools, colleges, malls and theatres until March 31. Odisha and West Bengal, too, invoked its powers under the Epidemic Diseases Act to impose restrictions on public gatherings. Maharashtra closed all its malls, schools, universities and theatres, and imposed Section 144 to deter tourist groups and tours. Kerala, which was the site of India's first case, used surveillance technology to track down absconding patients. While these measures may be sufficient to tackle state-specific outbreaks, they do not adequately guard against the spread of the disease to other states, particularly given increasing the domestic travel and migration within India.
For instance, the Uttar Pradesh government, despite having 16 confirmed cases and imposing a state-wide lockdown till April 2, continues to prepare for the Ram Nawmi Mela scheduled from March 25-April 2. The Mela will host lakhs of pilgrims from different parts of the country. Despite warnings by the Chief Medical Officer, the District Magistrate refused to postpone the event.
Hence, there is a need to empower the central government to override the decisions of state governments during medical emergencies to ensure optimal health outcomes. The powers under the Epidemic Diseases Act were decentralised following the controversial measures taken by the colonial British government to contain the outbreak of the Bombay Plague. Thus, there is likely to be resistance against the centralisation of power to contain pandemics as it leaves a wide scope for abuse.
However, the existing restricted powers are inconsistent with the interconnected nature of the modern era, in which diseases can spread rapidly and exponentially across international and state borders. Further, unlike the pre-colonial era, the central government is guided by the principles of the Indian constitution and the obligation to ensure the protection of human rights in all its actions.
Therefore, it is imperative that the failures that have characterized India's response to Covid-19 forces policymakers in India's central government to re-evaluate existing legal provisions to both contain the spread of the ongoing coronavirus crisis and be better prepared for future outbreaks.
