The Public Health Bill, 2017 needs to address the legal deficiency in planning, surveillance, communication, coordination, and protection of persons during a public health emergency.
THE Public Health (Prevention, Control, and Management of epidemics, bioterrorism, and disasters) Bill, 2017 has recently garnered attention since its implementation could be initiated soon. Various provisions of the existing draft of the Bill are being finalised by the Union Ministry of Health and Family Welfare officials, and it is likely to be introduced in the Parliament’s monsoon session.
The proposed Public Health Bill, if passed, will replace the colonial-era law the Epidemic Diseases Act, 1897 [EDA], which was implemented by the British administration to control the bubonic plague. Since then, neither any amendment to the law has been made nor have any accompanying Rules or Regulations been formulated, which has rendered it ineffective when it comes to combating or alleviating the spread of diseases like COVID-19.
The EDA is India’s only law that has been used in the past as a framework to contain the spread of numerous diseases, which include cholera and malaria. The law empowers the Union and state governments to implement extraordinary measures, and prescribes regulations to govern the citizens to contain and prevent the spread of disease.
A contemporary and holistic public health legislation would explicitly explain both the provocation and the caution that allows the State to curtail or restrict citizens’ rights to liberty, privacy, property, and movement.
The EDA lacks authority and effectiveness for various reasons. The Act fails to define an epidemic. No provision in the Act elaborates on the rules, procedures, or prescribes any test for arriving at a benchmark that ascertains that a particular disease must be prescribed as an epidemic in the country.
Further, the EDA makes no provisions for the sequestering and sequencing of medications, or vaccinations, quarantine measures or other precautionary actions that must be done. There is no underlying demarcation of the essential human rights standards that must be maintained when emergency measures are implemented during an epidemic.
The need for a central public health law
In 2017, the Ministry of Health and Family Welfare made the draft Bill public for comments and feedback from interested parties and stakeholders. The draft Bill proposes to give state and local governments the authority to respond appropriately to public health emergencies like epidemics and bioterrorism in a variety of situations.
Prepared jointly by the National Centre for Disease Control and the Directorate General of Health Services, the Bill has empowered states and local governments to take appropriate measures, including quarantining persons, decontaminating spaces, isolating infectious agents, destroying animals or birds, and conducting surprise inspections in the event of a public health emergency (Section 3).
The Bill emphasizes primarily the union and state governments’ powers during an epidemic, but it does not specify the government’s responsibilities in preventing and controlling the epidemic, nor does it expressly state citizens’ rights in the event of a major disease outbreak.
A contemporary and holistic public health legislation would explicitly explain both the provocation and the caution that allows the State to curtail or restrict citizens’ rights to liberty, privacy, property, and movement. Consequently, decision-making by the authorities would become predictable and transparent.
In India, there are a variety of laws that can be used in the event of a public health emergency. The Indian Ports Act, the Livestock Importation Act, the Aircraft Rules, and the Drugs and Cosmetics Act, for instance, all have provisions that can be employed in a situation like COVID-19. A comprehensive central public health law must aim at harmonising these provisions in a single legal framework.
The draft Bill envisions a four-tiered health-administration system, with national, state, district, and local public health authorities, with clearly demarcated and defined powers and responsibilities for dealing with public health emergencies.
Concerns have been expressed over the vast powers the Bill confers on the state, district, and local authorities.
While the Union Health Ministry would lead the national public health authority, it would be chaired by state health ministers. The next tier would be led by District Collectors, while local units would be led by Block Medical Officers or Medical Superintendents. These authorities will have the authority to take preventive actions against non-communicable diseases and emerging infectious diseases.
Powers of the state and local authorities, and their implications
Concerns have been expressed over the vast powers the Bill confers on the state, district, and local authorities. The proposed Bill defines numerous procedures primarily undertaken by the Centre and states to control the spread of COVID-19, and states that the authorities shall have the power to invoke such measures yet again if the need arises.
Further, the Bill empowers the government of a state or union territory to conduct any medical examination, which includes laboratory examination, and provide vaccination or treatment for any such disease to a person who is exposed, suffering, or suspected to be suffering from such disease. The provision fails to address the significance of consent of the concerned person for conducting such medical or laboratory examination, and providing vaccination or treatment.
The terms ‘epidemic’, ‘isolation’, ‘quarantine’, and ‘social distancing’ are all defined in the Bill, as well as clear definitions for ‘public health emergency of international concern’, ‘ground crossing’, ‘disinfection’, ‘deratting’, and ‘decontamination’ have been provided (Section 2).
Equal access to healthcare services must be a central foundation of any national pandemic law. Both the EDA and the proposed Bill fall short on this front. The responsibility of healthcare professionals and other workers, as well as their rights and the safety standards to which they are entitled, must be defined, as must civil society’s responsibilities during such a crisis.
The Bill, in its present state, requires an in-depth consultation and discussion of health experts and key stakeholders. A larger consultation is required to address the implications of the Bill once it is implemented. Further, a significant step towards addressing the issues with the Bill would be consulting states’ public health legislations and learning from global public health management systems.
Equal access to healthcare services must be a central foundation of any national pandemic law. Both the existing Epidemic Diseases Act and the proposed Bill fall short on this front.
The COVID-19 pandemic has provided the union government with an opportunity to implement a well-structured central legislation that bridges the gap between legislative and political intent. A new Public Health law needs to be the core of a functional public health system. The Bill must address the legal deficiency in planning, surveillance, communication, coordination, and protection of persons during a public health emergency.