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India kept improvising during coronavirus. Age of Pandemics needs a new public health law

An up-to-date legal framework will ensure there is no misuse of police power and human rights are protected. India can't tackle next pandemic with a 19th-century law.

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The world has faced numerous epidemics and pandemics since the turn of the century. In 2006, Dr Larry Brilliant, an American epidemiologist who was part of the World Health Organization team that worked to eradicate smallpox in India, warned that the next pandemic could kill 165 million people. In his talk, he also reiterated that the key to preventing and mitigating pandemics is “early detection, early response”.

India’s Integrated Disease Surveillance Programme (IDSP) was instituted in 2004, with the World Bank’s assistance, to track and monitor infectious disease trends – with the objective of maintaining “…decentralized laboratory-based IT enabled disease surveillance system for epidemic-prone diseases…”.

This programme, while very useful for collecting data and analysing disease trends, is housed under the central government’s National Health Mission (NHM) – which means it was not conceived under law, but under a government scheme. If the health scheme were, for some reason, to be modified so as to de-prioritise disease surveillance, or redirect funding to some other programme – the IDSP may falter, leaving India without a functioning disease surveillance system for deployment during the next pandemic.

When such preparedness measures are grounded in statute, their high-priority status is not forgotten or lost in budgeting or logistical manoeuvers that may accompany changing times and personnel.

Also read: Coronavirus crisis is India’s chance to bring health reforms stalled by British colonial rule

Shortcomings of the existing legal framework

India has relied on the 19th-century Epidemic Diseases Act, 1897 (EDA) and the Disaster Management Act, 2005 (DMA), to tackle the coronavirus pandemic.

The EDA is a brief and limited Act, focusing on granting the government wide discretionary and reactionary powers, without (a) establishing a reporting/command structure, (b) defining the roles of the various levels of government, (c) delineating the rights and responsibilities of the public, or (d) requiring the government to take any concrete steps in preparation for an infectious disease outbreak.

The DMA has a detailed command structure, with disaster management authorities at the central (NDMA), state, and district levels, who are required to formulate disaster management plans. It also constitutes a disaster response force that receives training in disaster response protocols, sets out protections for vulnerable communities in the formulation of disaster management plans, and provides for compensation to persons affected by a disaster. The fact that the Act does not mention epidemics or public health emergencies (PHEs) makes it clear that the focus of the DMA is on natural and man-made calamities, as opposed to PHEs.

We have seen the DMA and its architecture utilised in the coronavirus pandemic, by the NDMA, and the Union home ministry issuing lockdown and containment orders and directing the operations of various services in states. These measures have been improvised by the Narendra Modi government, in response to a fast-moving and unprecedented public health emergency. This is far from ideal – the time to strategise and take stock of resources and infrastructure is not in the midst of a crisis.

As highlighted in Vidhi’s briefing book Towards a Post-Covid India, the absence of a strong public health system and PHE legislation in India has resulted in extreme containment measures and coordination and communication failures, leading to the large-scale displacement of labourers, inadequate supply of personal protective equipment (PPE) to healthcare workers, misuse of police power, and patients absconding from isolation facilities.

Also read: Health a state subject, but Covid proved how dependant India’s states are on Centre

Legislating for a pandemic-ready India

Looking to the future, India must invest in public health, building a strong public health system, and promoting public access to the underlying determinants of health, such as clean water, sanitation, nutritious food, affordable medication, and adequate staffing of trained medical personnel and healthcare workers.

It must also invest in creating a comprehensive legal framework: (a) delineating the rights and duties of the people and the State in the context of public health emergencies, (b) defining the powers and functions of government, (c) empowering the state and local governments to undertake preparedness and response efforts suited to the requirements of each state/locality, (d) establishing a clear PHE communication and command structure between the different government agencies and departments, and (e) building reserves of healthcare capacity and trained healthcare workers for deployment during a PHE.

Such a framework would empower the government at all levels to manage a public health emergency effectively, while safeguarding human rights and reducing friction between the various organs and levels of state machinery.

Towards a Post-Covid India is a briefing book with 25 legal reforms recommended by the Vidhi Centre for Legal Policy. Join a series of conversations — ‘Law with a Difference’ — on the book. ThePrint is the digital partner. Read all the articles here.

Kim D’Souza is Research Fellow, Vidhi Centre for Legal Policy. Views are personal.

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