“Author is pursuing her 3 Year LL.B. Course from Faculty of Law, University of Delhi. She is presently in her 2nd Year of course and is inclined towards constitutional law and policy practices”.
Right to Health in India
The Universal Declaration of Human Rights, to which India is signatory, recognises that everyone has a right to a standard of living adequate for the health and well-being of its individuals.
Though the Constitution of India, does not regard the right to healthcare as a fundamental right up front, it does impose certain directions on the state as enshrined under Article 47 stating that the state will try to prohibit the consumption of intoxicating substances except for medicinal purposes and try to raise the level of nutrition, public health and standard of living of the people.
In Paschim Bangal Khet Mazdoor Samity vs State of West Bengal (1996), the Supreme Court held that Article 21 states that it the duty of the state to protect the right to life of every person and therefore the Government run hospitals and staff employed are required to preserve human life and failure to do the same is a violation of Article 21 as enshrined in the constitution.
Hence, article 21 conferring the right to life on the citizens also includes right to healthcare and The postponements in real life, the absence of satisfactory limit and the absence of interest in this pandemic has been a gross infringement of the crucial privileges of the residents of India. Further, the way in which traveler laborers have been treated in the lockdown is additionally violative of the wellbeing and security of the workers, to which they are entitled as essential rights, according to the apex court itself.
The Novel Virus
The recent outbreak of novel coronavirus starkly reminds us that the public healthcare system is a core social institution of any society. The pandemic has sent tremors to the healthcare sector, economies and societies all around the world. On March 11, 2020 The World Health Organisation announced that COVID-19 virus was officially a pandemic and it has been unabated since then. The Healthcare system which forms the nucleus of this unprecedented global pandemic is, thus facing a lot of challenges and revealing the flaws of Indian health sector. The pandemic has exposed the structural failures and health inequities that constitute virus impact.It has unveiled the shortcomings of existing legal framework: The Epidemic Diseases Act,1897 and The National Disaster Management Act ,2005.
The Epidemic Disease Act,1897
The Act was promulgated in colonial era to tackle the bubonic plague that happened in the Bombay presidency so as to contain the threat of epidemic disease. It consists of 4 sections which empowers government with wide powers. Section 1 describes the title and the extent. Section 2 of the Act states that special measures are to be taken by the Centre to “prescribe regulations as to dangerous epidemic disease.” The provision of the Act also includes detention of people or any vessel that comes from international sea shores to curb the outbreak of such disease.
Section 3 deals with the penalties for disobeying the regulations made by the government under section 2 and 2A. The section states that – “Any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under section 188 of the Indian Penal Code”. While the last section deals with legal protection to person acting under the act.
This is a 123 years old brief and limited act focusing on the grant of wide discretionary powers to the government without any established command and with no defined roles in the federal structure of the union. The Epidemic Disease Act doesn’t balance the rights of the individuals with the power of the state. The factors leading to emergencies and spread of disease have also changed over the years. Earlier traveling was carried out only by sea but now there has been extensive use of air travel and also greater migration globally, increased urbanization , change in technology of mass food production. The Act pays too much emphasis on quarantine measures but is ignorant on the other scientific methods of the outbreak, arrangement required for conveyance of vaccines, surveillance and other preventive measures. The Act is also reticent about the definition of epidemic, territorial boundaries and impact on human rights. It has not stated clearly when the authorities can curtail the autonomy, liberty and privacy of individuals. The act in the current scenario is, thus inadequate to deal with prevention and control of epidemic disease.
The National Disaster Management Act, 2005
This Act was implemented to provide effective management for disaster and keep checks and balances. It defines disaster as a “catastrophe, mishap, calamities or grave occurrence in any area arising from natural or man-made causes” under Section 2(d). The act instates authorities at national, state and district level and defines the role of union and state government under various ministries. The National Disaster Management Authority (NDMA) under the DM Act is the nodal central body for coordinating disaster management, with the Prime Minister as its Chairperson. Section 6 of the act lays down the policies, plans and guidelines for disaster management. While Section 10 (2)(l) authorizes National Executive Committee to give directions to the government regarding measures to be taken.
The Government has announced COVID-19 as a “disaster” under the Disaster Management Act 2005. Herein, the Act doesn’t mention epidemic or public health emergencies, the emphasis of NDMA is on natural and man-made calamities. The fact remains that India doesn’t have a strong dedicated legislation to deal with pandemic situations. There is a glaring gap in overarching law governing healthcare which needs to be embed to combat COVID-19 pandemic.
The National Health Bill, 2017
The neglect has been seen in the policy making process. A Public Bill was drafted in the year 2017 which was intended to replace the old Epidemic Disease Act of 1897 to control epidemics and disasters, to overhaul the current system, but the bill still hasn’t been passed by the parliament. The bill contains an increase in health spending to 2.5% of the GDP by 2025, there has, however, been no movement in this direction, with the last recorded allocation being 1.1% of the GDP.
India has a myriad of acts that can be enforced during public health emergency. There is for instance the Drugs and Cosmetic Act 1940, Aircraft Rules Act 1954, The Indian Ports Act 1908, Livestock Importation Act 1898 and provisions of Indian Penal Code 1860. There is a requisition that all these provisions coalesce into a single legislation to combat the present COVID-19 situation.
Neglect of Public Health Infrastructure (PHI)
The increase of India’s population from the time of independence till today, has not seen proportionate robustness in policy reforms particularly in the development of public health infrastructure, despite having recognition of the fact that universal public healthcare system is imperative for growth and development of the nation . The neglect is reflected in the policy making process.
The Coronavirus crisis has exposed the weakness in the public healthcare system many of which could have been overcome by simple policy decisions. In the past there have been attempts to draft statutes predicated on community health such as Model public health Act of 1955 updated in 1987. The union government has been not been able to convince the state to adopt the law since the health is a state subject and comes under the state list as described by the constitution. In the years between 2009 and 2019, India invested less than 2% of its GDP in public health. This percentage has continued to drop, with barely 1.1% of the GDP going towards public health last year. This lack of investment is the reason India has not been able to cope effectively with the ongoing COVID-19 pandemic.
In the recent discourse on COVID-19 pandemic in the Lok Sabha, some of the members raised the legal anomaly with regard to the pandemic, impelling the government to reform the current situation and bring about emergency legislation while parliament is in session but again the situations was paid no heed.
The Supreme Court’s reiteration of constitutional obligation must stir up the centre and the state to end the decade long neglect and work towards addressing the issues expediently.
COVID-19 is more like a mirror and a magnifying glass to us. It is just magnifying and reminding us what has already been there as a defect in the system. The pandemic is an alarm bell to strengthen the health care laws as well as need for prudent and proactive approach towards any emergency that may arise. The government of India by neglecting the public health, have relinquished their responsibilities. The ongoing pandemic and public health emergency thus provide a rare opportunity to the union government to get updated with the country’s existing laws otherwise this legislative and policy gap could soon prove to be an Achilles’ heel for India.
An Approach Paper on a new Public Health Act proposed by a Task Force, put together by the government in 2012 contents that it is essential for the health system concerning the public to be regulated by laws and that there is dearth in preparations regarding numerous facets related to the protection of people in case of an emergency and that it is of paramount importance that such issues are taken up by the new Public Health Act.
To combat against this virulent novel pathogen, a strong and effective public health infrastructure is essential to respond to this crisis. The public health services can reinvent and rejuvenate if there is a substantial upgradation in budgets. This is possible if state governments spend at least 8% of their total budget on health and the Union government share is hiked, bringing this to 50% of total public health spending. Innovation is another area that is important in the upscaling of healthcare infrastructure. Investments in innovation, data and technology and in research will be an impetus to create a resilient healthcare system.
Today’s major cause of concern are the regular health programmes such as routine immunisation, care for pregnant women and infants, delay or failure to deliver life saving drugs to patient with chronic illness, these seem to have been largely sidelined. There is a need for the government to re-prioritize and chalk out its health and safety programmes to avoid any contingency. As many experts have recapitulated that the first phase of India’s nationwide lockdown in March, which was extended for 21 days, failed due to misplaced prioritization
Unless we look at health in a holistic sense, we won’t be able to preclude outbreaks like this. Thus, to achieve a universally available and holistic healthcare system, a synergic approach needs to be made between the central and the state government as seen in the past with the efforts to eradicate polio. Further, there is a need to critically scrutinise Niti Aayog’s recent proposal for privatisation of large district hospitals. Envisioning hundreds of district hospitals across the country being managed by a large number of disconnected, profit-oriented, private hospitals during the epidemic, the recommendation comes as much of a surprise .
In 2014, the Global Health Security Agenda (GHSA) was established among a group of countries, organisations, non-profits and private sector companies to build core capacity to prevent avoidable catastrophes, detect threats early and respond rapidly and to effectively deal with existing and emerging global threats of infectious diseases and to promote global health security. The COVID-19 crisis could have been handled well in India if the action packages of GHSA had been implemented effectively.
Considering COVID-19 won’t be the last pandemic our country encounters, and the serious climate change which is affecting the social and environment detriments of health will soon be bringing more healthcare challenges and the absence of Universal Health coverage (UHC) for a country with a population 139 crore means we are constantly on the cusp of disaster. India can’t afford to ignore putting in place, as soon as possible, a robust UHC apparatus. And public health experts, on their part, can’t afford to neglect putting in place strong alliances with community based, politically active individuals and organisations. Post-epidemic India needs UHC to stop being just a top-down expert recommendation and turn into a bottom-up grassroots demand.
More Than a Crisis – A Chance To Revamp Healthcare System Of The Country
COVID-19 is both a crisis and an opportunity to build and effective health care mechanism for the country. This pandemic has exposed the fundamental problems plaguing the Indian healthcare system, be it physical infrastructure, manpower, health management or inadequacy of primary healthcare for the population. It has revealed the gaps in our system and showcased our underinvestment in an overall public health sector. It’s not only about the urban infrastructure but rural healthcare infrastructure as well which has been largely suboptimal. COVID-19 creates a special challenge considering the poor testing services, surveillance system and above all poor medical care including shortages that we discussed earlier. The government can take a three-fold approach by investing and preparing healthcare providers in both rural and urban areas for the epidemic; initiating education programmes to educate people; and by creating a strong surveillance system that can help in reducing the spread and fatality. Hence, providing clinical guidelines, training and handholding may help.
To quote Mahatma Gandhi,
“It is health that is real wealth and not pieces of gold and silver.”
A strong foundation for an independent, healthy and thriving India lies on Make in India, Innovate in India and Collaborate in India.
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 Article 47 Constitution of India.
 Article 21 Constitution of India.
 World Health Organisation ,Coronavirus Disease, Covid 19 Pandemic.
 The Epidemic Disease Act,1897, Section 2.
 Rakesh, P. S., The Epidemic Diseases Act of 1897: public health relevance in the current scenario. Indian journal of medical ethics, 1(3), (2016).
 Ministry of Home affairs ,Government of India “Disaster Management in India” UNDP.
 The National Disaster Management Act 2005, Section 6.
 “Approach Paper on Public Health Act: Task Force on Public Health Act”, National Health Systems Resource Centre, 25 July 2012.
 Health opinion/ Thewire.in.
 Supra note 10