While discussing whether to introduce more stringent measures to stem the spread of the novel coronavirus, advisors told Indian Prime Minister Narendra Modi that the country lacked laws to instruct provinces to observe lockdown and put curbs on travel in times of a pandemic.
His counterpart in Pakistan, Imran Khan, also faced a similar predicament in absence of any legal cover to deal with the pandemic in a multidimensional way.
Most countries in South Asia are still using a single-page law enacted by the British back in 1897. While it empowers officials to enter into any house and forcibly examine a suspected sick person, it does not authorize the government to enforce a lockdown or even screening of passengers at the airports. There was no air travel when the law known as the Epidemic Diseases Act, 1897 was enacted to deal with bubonic plague outbreak in India's commercial capital of Mumbai.
In Pakistan, this law was amended in 1958 and renamed as the West Pakistan Epidemic Diseases Act, 1958. But the only amendments in the text were to replace the word India with Pakistan.
Authorities in both countries, however, soon found a way forward. Declaring the coronavirus a national disaster, rather than an epidemic, they were able to invoke comprehensive disaster management laws to empower the executive to deal with the crisis. A 2004 tsunami and major earthquake a year later that shook the region had led both countries to enact national disaster management laws and set up powerful disaster management bodies to deal with catastrophes.
Another problem that cropped up in India was that disasters are handled by the Home Ministry, which is also a coordinating ministry. Thus, its secretary also chairs the National Executive Council (NEC) set up under the National Disaster Management Authority.
But in the case of a pandemic, it is only the Health Ministry that has the expertise and resources to coordinate and prepare a response to stem the outbreak of disease.
On March 14, the Indian government officially listed the COVID-19 pandemic as a disaster. Coinciding with this, Home Secretary Ajay Kumar Bhalla issued an order delegating his authorities required to deal with the disasters to Health Secretary Preeti Sudan.
Invoked disaster law to address the epidemic
The move not only helped the government to invoke the Disaster Management Act, 2005 (DMA) to order lockdown measures and direct provincial governments, it also paved the way to seek assistance available under the State Disaster Response Fund.
In India's federal structure, health care is run by individual states, with the central government having little say in its management. Only during disasters or war is the central government empowered to issue directions and orders. Even though the DMA came into effect in December 2005, this was the first time that it has been invoked to such an extent.
Ironically, documents show that a two-member high-level committee in 2014 had asked to repeal the archaic 1897 law.
The committee was set up Modi soon after assuming office in May 2014 and included R. Ramanujam, then secretary at the prime minister's office and V. K. Bhasin, former secretary of the legislative department.
Assigned to study utility of old laws and to remove them form the statute book, they found eight months later that out of total 2,781 central acts, 380 laws enacted from 1834-1949 were still in practice despite having lost relevance. They identified 1,741 laws, including the Epidemic Diseases Act, 1897, and recommended their complete annulment. The committee also asked that a new comprehensive law be enacted to deal with epidemics.
The Epidemic Diseases Act, 1897 involves measures and regulations to inspect any ship or vessel leaving or arriving at any port, but has no provision authorizing governments to screen passengers at airports. The law also imposes up to six months in prison or a fine of up to 1,000 rupees ($13.25) on violators. Though the fine was high in 1897, it is now negligible as a deterrent.
In 1896, the bubonic plague had swept through Mumbai, then known as Bombay. The crisis had prompted the British to quickly draft the law to prevent the spread of a dangerous epidemic. In 1981, the Spanish flu, which had started in the West, made its way to India despite the absence of mass commercial travel. Nearly 20 million people in India are estimated to have perished in that epidemic.
New proposed law in limbo
After three years of deliberations, the Indian government in 2017 unveiled a draft public health bill, including disease prevention, control, management of epidemics, bio-terrorism and disasters. However, it has not introduced it in parliament to replace the century-old Epidemic Diseases Act.
Experts believe that while the new draft legislation, still awaiting its enactment, is also lacking to address modern needs.
In case of a public health emergency, the draft law empowers medical officers to inspect any premises, isolate people, restrict movement, test patients and mandate treatment or vaccination. It also authorizes the government to take measures to prevent, control and quarantine people who might have been exposed to the disease.
But what pinches experts is that there is no mention of the economic ramifications of an epidemic. Author and Chennai-based health activist Dr. Vijayaprasad Gopichandran alleges that the bill is silent on the government's duties during a public health emergency. "There is no mechanism stated in the bill about the responsibilities of the government in ensuring that the measures are evidence-based and effective, that the duration of time of restrictions is appropriate and that the infringement into the privacy of the population is proportional," he said.
He added that new legislation needed to address modern methods of outbreak prevention and disease control, such as the establishment of surveillance and early warning systems and a geographical information system to mapping diseases' spread, arguing that these would be less intrusive methods of disease prevention and containment.
The fast-paced and connected world has amplified the threat of transmission of lethal microorganisms, potentially leading to losses of life and disrupting international travel and trade. This poses a uniquely formidable challenge. While countries have been cooperating on natural disasters across the world, there is no such mechanism to respond collectively to pandemics.
The last two decades have seen swine flu, Ebola, SARS and Nipah, infecting hundreds of thousands of people around the world. There is a case that countries should not only update their health-related legislation but also treat pandemics as disasters to collaborate on and share best practices and research.