The health degree of a society’s well-being is determined by the ideas which take actual shape in the course of its daily self-constitution. In order to reform and even redeem such a society, we have to reform those defining ideas. The quality of our human life is a function of our determining ideas. Law plays a significant and structural role which is also responsible for the creation of an infinitely complex network of legal relations connecting every single individual of a society. Our individual and social behavior derives its genesis from the law, which is responsible for the development of social reality. In the present situation, COVID-19 is our reality. It is an eye-opener for all of us, as a community, as citizens and even as a nation.
In his book ‘Health Care Law,’ J. Montgomery articulated the notion of the right to health by providing two possible conceptions of health: ‘The Social Model’ and ‘The Engineering Model’. The Latter model emphasizes repairing a defective human machine. This model is not immune to challenges because one cannot ascertain the optimum level of health and identify when a particular human-machine becomes defective. This judgment is inherently subjective and medical professionals are accountable for its determination. The former model, on the other side, has a broader amplitude. International legal instrument (as declared in the Declaration of Alma Ata) is a wider approach that recognizes health as a state of complete mental, physical and social well-being and not merely absence of any infirmity or disease. This approach also identifies health as a fundamental right and that the fulfillment of the highest level of health is important from a global perspective, whose comprehension demands actions of several socio-economic sectors along with healthcare as one. On the contrary, India’s healthcare law might appear quite archaic.
A Colonial Law versus A Novel Virus
During the late 19th century, British-India was struck by the scourge of bubonic plague (also known as Bombay Plague Epidemic). The bubonic plague was responsible for the loss of thousands of human lives. From Mandvi of Bombay (presently Mumbai), the plague gradually engulfed a massive human population within short span of time. In order to combat such an epidemic, the Epidemic Diseases Act was enacted in 1897. Thereafter, India has encountered several outbreaks of infectious diseases since independence. Cholera O139, Chikungunya, H5N1 Influenza, H1N1 Influenza, Nipah outbreak, Japanese Encephalitis, and Crimean-Congo Hemorrhagic fever have emerged and even re-emerged in the recent past. The said law has been repeatedly used by states. The Act of 1897 empowers the state as well as central government to take special measures and prescribe relevant regulations as regards an epidemic disease. Section 2 of the legislation confers a discretionary power upon the state government to adopt temporary regulations to be observed by the public or by any person/class of persons as it shall deem necessary to prevent the outbreak of such epidemic. The central government’s power was however inserted by an amendment in 1920. According to section 2A of the act, the central government, concerned that any part or the entire country is threatened with an outbreak of an epidemic, may take measures and prescribe regulations. As per section 3 of the Act, anyone who violates the act shall be deemed to have committed an offense punishable under section 188 of the Indian Penal Code.
The VII Schedule of The Constitution of India enlists Public Health under State List. Therefore, a lot of discretion is with the state government to adopt, enact, and enforce public health related regulations. Conversely, the state governments are not always financially equipped to take effective measures. Ensuring essential commodities during the time of epidemic is yet another crucial challenge. In spite of these provisions, India’s existing laws fall short of meeting the challenges of a pandemic. With the dynamic and progressive era of globalization, it needs to update its public health law. For example, the modern-day challenges of international air travel, intra-state movement of migrant workers, escalation of population density of urban areas, changing pattern of food habits, use of social media, public distribution system and even climate change contribute to pandemics. Never, in the history of Independent India, has the entire country witnessed such a lockdown. Although the Epidemic Diseases Act appears quite regulatory in nature, it does not address the multi-faceted dimensions of public health issues of India.
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Source: Jurist