Covid-19 ^[1] is continuing its threat to all human beings , regardless of age, sex, lifestyle, ethnic background, socio-economic status and nationality . It is causing suffering and death throughout the world. The humanity never expected Covid-19 to emerge . Outbreaks are a fact of life, and the world remains vulnerable. Today we do not know when Covid-19 will end , but all that we know at present is that Covid-19 has taken a terrible toll, both on human life, and on the global economy.

A long series of scourges^[2] for example the Ebola virus, in 1976, the Human Immunodeficiency Virus (HIV), in 1983, an Avian Strain Of Influenza in 1997, SARS – Severe Acute Respiratory Syndrome in 2003, the Novel Influenza Virus, H1N1 in 2009 , MERS – Middle East Respiratory Syndrome in 2012-2013, the Ebola epidemic in West Africa (Guinea, Liberia, and Sierra Leone) in 2014 , the Zika virus, in 2015 and the major outbreak of plague in Madagascar in 2017 have taught that public care health system must always be prepared for the unexpected . In a situation wherein there is no vaccine nor treatment available minimizing the transmission of infectious diseases is the only way before the Public health care system.

Public health care system includes not only the physical structures of public health agencies, clinics and hospitals and the human resources to operate them, but also countries' legal infrastructure – the laws and policies that empower, obligate and limit government and private action concerning health^[3]. A health emergency tests how effectively regulatory strategies, social contract principles and human rights norms have been embodied in the written laws of a country, and how closely, in turn, those legal embodiments guide action. ^[4] Disease outbreaks, for example, require a wide range of actions e.g. disease reporting, surveillance, quarantine, social distancing, curfews, lockdown import of medical supplies and personnel, and vector control , all of which are effected through, or subject to, national laws. Governments are also obliged to protect the human rights of individuals affected by an outbreak.

Therefore public health care law always play a vital role in supporting the public health system in the prevention, treatment and control of epidemic diseases

Generally the public health law play two major roles viz.,

1. A proactive or preventive role
2. A reactive role involve
3. Proactive or preventive role of public health care law

A proactive or preventive role of public health care law involves improving access to vaccinations and contraceptives, together with screening, education, counselling and other strategies that aim to minimize exposure to disease. For example diseases like measles or polio which are entirely preventable by vaccination , or diseases like diarrhoeal and parasitic diseases are preventable by access to improved sanitation and clean drinking water and diseases like tuberculosis and malaria which are treatable when detected in a timely manner fall in this category.

2. A reactive role of public health care law

However in situation like fighting an outbreaks of contagious and serious diseases like COVID- 19 public health law adorns reactive role ie., supporting access to treatment, and authorizing health departments and health care providers to limit contact with infectious individuals and to exercise emergency powers in response to disease outbreaks.

This reactive role involve a wide range of administrative powers

· Conduct of surveillance , mandate vaccinations if available , treatment options , isolation or quarantine of infected or potentially infected individuals.

· Seize property in order to establish emergency response centres and to ensure the availability and rapid distribution of pharmaceuticals and supplies;

· Expand the health care or disaster management workforce by co-opting personnel from other agencies and jurisdictions under a unified command structure;

· Interference with freedom of movement, the right to control one's health and body, and with privacy and property rights. .

The reactive role of public health care law is inevitable in the current situation but any measures taken to protect the population that limit people's rights and freedoms must be lawful, necessary, and proportionate^[5].

CONSTITUTIONAL PERSPECTIVE OF COVID-19

The Constitution of India very well justifies this reactive role of public health law. As per the Indian Constitution both the central government of India and the state governments are constitutionally empowered to legislate on matters of public health.

Accordingly as per the Union List ie., List I Entries 28^[6] and 81^[7] of the 7^th schedule the Union is empowered to legislate on matters which may deal with port quarantine, including in connection with seamen's and marine hospitals. The law may also deal with interstate migration and quarantine. Likewise Public health is a state subject^[8] and therefore State is empowered to legislate on matters relating to public health and sanitation, hospitals, and dispensaries^[9]. Entry 26^[10] of the Concurrent list covers legal, medical and other professional rights while Entry 29^[11] of the Concurrent list covers prevention of the extension from one State to another of infectious or contagious diseases or pests affecting men, animals or plants.

The Entries of the Constitution of India spells out the legislative ambit of Union and the State as far as health is concerned. Restrictions like quarantine are also mentioned , However the restrictions on rights for reasons of public health or national emergency be lawful, necessary, and proportionate.^[12] Restrictions such as mandatory quarantine or isolation of symptomatic people must, at a minimum, be carried out in accordance with the law. They must be strictly necessary to achieve a legitimate objective, based on scientific evidence, proportionate to achieve that objective, neither arbitrary nor discriminatory in application, of limited duration, respectful of human dignity, and subject to review.^[13]

LEGISLATIVE PERSPECTIVE OF COVID-19

Legal frameworks are important during emergency situations as they can delineate the scope of the government's responses to public health emergencies and also, the duties and rights of citizens^[14]. Whenever an epidemic disease strikes India Epidemic Diseases Act of 1897^[15] have been invoked to force persons to be segregated and get themselves treated. . The preamble to the Epidemic Diseases Act,1897states that its objective is to provide for better prevention of the spread of dangerous epidemic diseases^[16] . The Epidemic Diseases Act empowers the state governments^[17] to take measures as may be warranted or necessary to control the further spread of disease. Thus, any state government, when satisfied that any part of its territory is threatened with an outbreak of a dangerous disease, may adopt or authorize all measures, including quarantine, to prevent the outbreak of the disease^[18].

Similarly under S.2A ^[19]of the said Act , the Central government, when satisfied that there is an imminent threat of an outbreak of an epidemic disease and that the provisions of the law at that time are insufficient to prevent such an outbreak, may take measures and prescribe regulations allowing for the inspection of any ship or vessel leaving or arriving at any port and for the detention of any person arriving or intending to sail.

Any person who disobeys any regulations or orders made under the 1897 Act may be charged with an offense under Section 188 of the Indian Penal Code^[20]. By this, the disobeying person is punishable with imprisonment of either for a term up to six months, or with fine up to Rs 1,000 or both^[21].

Thus the Epidemic Diseases Act 1897 is currently invoked viz.,

1. To restrict the movement of suspected coronavirus patients to prevent further spread of the disease.

2. To prohibited cruise ships, crew, or passengers from coronavirus-hit nations to come to India till March 31, 2020.

3. Starting from 13 March 2020, all existing visas, except diplomatic, official, UN/International Organizations, employment, project visas, stand suspended until 15 April 2020.

Though Epidemic Diseases Act, 1897, gives the Central and State Governments overarching powers but it lack speedily set up management systems required for a coordinated and concerted response to COVID -19 .

Therefore, the Disaster Management Act, 2005, which provide for an exhaustive administrative set up for disaster^[22] preparedness is also invoked . The DM Act clearly lays down a multidimensional strategy to handle pre-disaster and post-disaster situations and mandates certain actions by the officers of different ministries to work in tandem, in mobilizing resources across the ministries and departments thereunder, to control and contain the damage wrought/liable to be wrought by a disaster

The powers held by the home ministry under the Disaster Management Act is currently delegated^[23] to the health ministry^[24] so as to enhance the preparedness and containment of novel Coronavirus(COVID-19).This includes interalia^[25] lay down guidelines for preparing disaster management of novel Coronavirus plans by different Ministries or Departments of the Government of India and the State Authorities , providing necessary technical assistance to the State Governments and the State Authorities for preparing their disaster management plans of novel Coronavirus in accordance with the guidelines laid down by the National Authority; monitor the implementation of the National Plan and the plans prepared by the Ministries or Departments of the Government of India monitor, coordinate and give directions regarding the mitigation and preparedness measures regarding COVID -19 to be taken by different Ministries or Departments and agencies of the Government; evaluate the preparedness at all governmental levels for the purpose of responding to any threatening disaster situation posed by COVID-19 , require any department or agency of the Governemnt to make available such men or material resources as are available with it for the purposed of emergency COVID -19 response advise, assist and coordinate the activities of the Ministries or Departments of the Government of India, State Authorities, statutory bodies, other governmental or non-governmental organisations and others engaged in COVID -19 management ; provide necessary technical assistance or give advice to the State Authorities and District Authorities for carrying out their functions .

Invoking the DM Act, 1995 the Ministry of Health and Family Welfare^[26] directed all state/ UTs Government and concerned State Authorities to take necessary steps to ensure sufficient availability of surgical and protective masks, hand sanitizers and gloves at prices not exceeding the maximum retail price printed on the pack size. The 2 ply and 3 ply surgical masks and N95 and hand sanitizers have been declared as essential commodities under the Essential Commodities Act 1955 to ensure prevention of hoarding, black marketing and profiteering of these items.

The said Act also help the concerned authorities to nab any person who makes or circulates a false alarm or warning as to disaster or its severity or magnitude, leading to panic. ^[27]. On conviction, such person is liable to be punished with imprisonment which may extend to one year or with fine.

In addition to the Epidemic Diseases Act,1897 and Disaster Management Act, 1995 the Aircraft Act, of 1934 and R.2(8) Indian Aircraft (Public Health) Rules, 1954, allow airport authorities to screen the travellers who originate from or transit through COVID -19 affected nations, and track them after their arrival in India ^[28] . Passengers are also informed through in-flight announcements that mandatory self-reporting is required at immigration. The government also set up facilities at airports and ports to manage travellers showing symptoms of the disease . The surveillance system will track travelers for four weeks and persons who develop symptoms will be advised to self-report and also for quarantine ^[29]. Similarly for passenger ships, cargo ships, and cruise ships detailed health measures like, non-invasive medical examination of the passengers , isolation of the passengers , surveillance for a period not exceeding the incubation period of the PHEIC to which they have been exposed, undertake appropriate vaccination or other prophylactic measures in accordance with the recommendations of the WHO as communicated by the Central Government; to undertake disinfection, decontamination, disinfection or de-ratting of the ship/vessel, as appropriate, or cause these measures to be carried out under their supervision under the Indian Port Health Rules 1955^[30], pursuant to the Indian Port Act^[31]

As the outbreak continues to evolve, Indian just like other country across the world are considering options on a war footing to prevent introduction of the disease to new areas or to reduce human-to-human transmission in areas where the virus that causes COVID-19 is already circulating. But at times one can find that irresponsible behaviour from the side of the citizens put an entire society into acute danger^[32].

Strict action can be taken against such irresponsible behaviour and certain provisions of the Indian Penal Code comes in handy. Sec.269 of Indian Penal Code, enumerates as to how to deal with persons who act carelessly to endanger the public health and life .Once found guilty it can can lead to up to six months imprisonment and fine^[33].

The main ingredient of this section is the disease must be infectious. The section comes into play whether the communication of the disease is direct or indirect and whether they may be infectious or contagious. The diseases, which the medical authorities agree to be infectious, are all covered under this section and not those, which are suspected. Hence any person who is affected by diseases like plague, cholera etc exposes himself or travels through a public transport are likely to spread the disease and are attracted to this section.

In Chabumian's case the accused resided in plague-stricken house in the Ambala Cantonment, and had been in contact with a plague patient. He was taken to the plague shed with the patient who died there. The next day, the accused left the shed against orders, and traveled by rail to the neighbouring town. He was held to have committed an offence under this section as he had sufficient reasons to believe that his act was likely to spread the infection of plague which is dangerous to life.

Similarly , sec.270 of Indian Penal Code , which talks about any malignant act likely to spread infection of disease dangerous to life, is punishable with imprisonment for a term which may extend to two years, or with fine, or with both^[34].It is evident that Section 270 deals with malignant act likely to spread infection of disease dangerous to life.. The only difference between s.269 and 270 is that in s.269 deals with acts of careless or a negligent nature and sec.270 deals with malignant or malicious act not done with a benevolent intention. If a person is traced under this section then he will be guilty of homicide and not merely nuisance.

Section 271^[35] punishes a person who knowingly disobeys a rule of quarantine in existence made and promulgated by the government. Quarantine relates to a vessel, which is segregated for prevention of contagious disease.The District Collector can also invoke sections relating to public tranquillity ^[36] Government of Kerala has already directed the police to arrest COVID-19 infected people kept under isolation and home quarantine, if found roaming in public places.

LIMITATIONS OF THE EPIDEMIC DISEASES ACT IN THE CHANGED CONTEXT

COVID -19 has taught us one more bitter lesson ie it has exposed to us the major limitations of the Epidemic Diseases Act . Some of the factors that need to be addressed now are the increasing rates of international travel, more extensive use of air travel^[37] compared to sea travel, greater migration within states for the sake of earning a livelihood, the transition from agrarian to industrial societies, increased urbanisation, grossly increased density of populations in certain areas, increasing intensity of contact with animals and birds, man-made ecological changes, changing climatic conditions, technologies of mass food production, breakdown of public health measures and biosafety lapses^[38].

The Act does not provide us a definition of what an epidemic disease is nor does it gives us a description of a dangerous epidemic disease^[39]. The Epidemic Diseases Act is purely regulatory in nature and lacks a specific public health focus . It does not describe the duties of the government in preventing and controlling epidemics. The Act emphasises the power of the government, but is silent on the rights of citizens. The Act is also silent on the ethical aspects or human rights principles that come into play during the response to an epidemic. Individual autonomy, liberty and privacy should be respected to the greatest extent possible, even during the enforcement of laws .Rather than containing clear executive instructions, the Epidemic Diseases Act is more or less like a guidance document. It does not mention any scientific steps that the government needs to take to contain or prevent the spread of disease .

PUBLIC HEALTH LEGISLATION THE NEED OF THE HOUR

The country has many legal provisions which can be used to take public health measures to prevent and control an epidemic[40], Bringing all the legal provisions for preventing outbreaks under a single legislation would be challenging, though it would be beneficial for effective implementation and monitoring. In 1955 and 1987, the Central government developed a Model Public Health Act, but failed to persuade the states to adopt this. The Public Health Act was revised by the National Institute of Communicable Disease (currently the National Centre for Disease Control) a decade ago, but the revisions have still not been approved by the government. Many states formulated their own public health laws and many amended the provisions of their epidemic disease Acts. The Madras Public Health Act was passed in 1939. This was the first of its kind in the country. The government of Himachal Pradesh included provisions for compulsory vaccinations in its Epidemic Diseases Act, while Madhya Pradesh, Punjab, Haryana and Chandigarh conferred powers on specific officials to execute various provisions of the Act. Bihar gave the state government the power to make requests for vehicles during epidemics. While it is true that the priorities of the states are different, the platform of a common law for combating infectious disease that the states should work on should be the same. There are instances in which different parts of a state are following two different public health acts. For example, the southern districts of Kerala follow the Travancore- Cochin Public Health Act, 1955, while the northern districts follow the Malabar Public Health Act, 1939. Municipal Acts in different states vary in quality and content, and many are vague about the measures to be taken during the outbreak of a disease Most of the public health Acts in the states are policing Acts, intended to control epidemics, and do not deal with coordinated and scientific responses to prevent and tackle outbreaks .

What we require is a legal framework relevant to the current context. A good public health law infrastructure establishes not only the powers of the government, but also shapes the government's role in preventing and controlling diseases. There is a need for an integrated, comprehensive, actionable and relevant legal provision for the control of disease outbreaks in India. This should be articulated in a rights-based, people-focused and public health-oriented manner. The National Health Bill 2009 was one such proposed legislation^[41].

CONCLUSION

In absence of a uniform public health act the government must ensure that quarantines, lockdowns, and travel bans or isolation of symptomatic people must, be carried out in accordance with the law based on scientific evidence, proportionate to achieve that objective, neither arbitrary nor discriminatory in application, of limited duration, respectful of human dignity, and subject to review^[42].When quarantines or lockdowns are imposed, governments are obligated to ensure access to food, water, health care, and care-giving support. COVID-19, like other infectious diseases, poses a higher risk to populations that live in close proximity to each other^[43]. And it disproportionately affects older people and individuals with underlying illnesses such as cardiovascular disease, diabetes, chronic respiratory disease, and hypertension. . States have an obligation to ensure medical care for these people As part of the right to health, government should also create conditions that would assure to all medical service and medical attention in the event of sickness^[44]. At the same time Governments have an also have an obligation to minimize the risk of occupational accidents and diseases including by ensuring workers have health information and adequate protective clothing and equipment. This means providing health workers and others involved in the COVID-19 response with appropriate training in infection control and with appropriate protective gear. Combating the spread of COVID-19 also requires that health facilities have adequate water, sanitation, hygiene, healthcare waste management, and cleaning^[45]

.Views Are Personal Only. 

(Author is Professor and Head, School of Indian Legal Thought, Mahathma Gandhi University , Kottayam, kerala)