The legislative section is divided into three lists: Union List, State List and Concurrent List. It is true that public health is a state subject.  The Concurrent List or List-III (Seventh Schedule) is a list of 52 items given in the Seventh Schedule to the Constitution of India. It includes the power to be considered by both the central and state government.

 The State list (6) includes Public health and sanitation; hospitals and dispensaries.

 However the concurrent list 26 covers Legal, medical and other professions and 29 covers Prevention of the extension from one State to another of infectious or contagious diseases or pests affecting men, animals or plants.

 Also, an epidemic is also covered under Disaster Management Act.

 Powers executed by the Union home secretary under the Disaster Management Act were delegated to health ministry to increase preparedness against the coronavirus outbreak. The Union home ministry order said the powers are exercised by the Union home secretary under section 10 of the Act and he being the Chairman of the National Executive Committee (NEC).

Other acts Applicable to COVID-19

Indian Public Health system

India has a constitutional division of legislative responsibilities between the central government and the states.  Both the central government and the state governments are constitutionally empowered to legislate on matters of public health. 

Central Acts

 Epidemic Diseases Act 1897

The preamble states that the objective is to provide for better prevention of the spread of dangerous epidemic diseases.

It empowers the state governments and the central government to take measures as needed to control the further spread of disease. 

When any state government is satisfied that any part of its territory is threatened with an outbreak of a dangerous disease, it can adopt or authorize all measures, including quarantine, to prevent the outbreak of the disease.

Likewise, when the central government is satisfied that there is an imminent threat of an outbreak of an epidemic disease and the provisions of the law are deemed insufficient to prevent such an outbreak, it may take measures and prescribe regulations allowing for the inspection of any ship or vessel leaving or arriving at any port and for the detention of any person arriving or intending to sail.

Any person disobeying any regulation or order made under the 1897 Act may be charged with an offense under section 188 of the Indian Penal Code.

188. Disobedience to order duly promulgated by public servant.—Whoever, knowing that, by an order promulgated by a public serv­ant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple impris­onment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Explanation. —It is not necessary that the offender should intend to produce harm or contemplate his disobedience as likely to produce harm. It is enough that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm. Illustration An order is promulgated by a public servant lawfully empowered to promulgate such order, directing that a religious procession shall not pass down a certain street. A knowingly disobeys the order, and thereby causes danger of riot. A has committed the offence defined in this section.

At the discretion of the trial magistrate, such an offense may be tried summarily.  No suit or legal proceeding lies against any person or authority for anything done, or in good faith intended to be done, under this Act. 

Some of the issues that require revisiting: the “definition of epidemic disease, territorial boundaries, ethics and human rights principles, empowerment of officials, [and] punishment.” 

National Centre for Disease Control is developing a “Public Health Emergencies Act,”.

4. Indian penal Code: Section 270: Malignant act likely to spread infection of disease danger­ous to life.—Whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
5. MCI Ethics Regulations: 2.2 Patience, Delicacy and Secrecy: Patience and delicacy should characterize the physician. Confidences concerning individual or domestic life entrusted by patients to a physician and defects in the disposition or character of patients observed during medical attendance should never be revealed unless their revelation is required by the laws of the State. Sometimes, however, a physician must determine whether his duty to society requires him to employ knowledge, obtained through confidence as a physician, to protect a healthy person against a communicable disease to which he is about to be exposed. In such instance, the physician should act as he would wish another to act toward one of his own family in like circumstances.
6. MCI Ethics Regulation7.14:  The registered medical practitioner shall not disclose the secrets of a patient that have been learnt in the exercise of his / her profession except – i) in a court of law under orders of the Presiding Judge; ii) in circumstances where there is a serious and identified risk to a specific person and / or community; and iii) notifiable diseases. In case of communicable / notifiable diseases, concerned public health authorities should be informed immediately.
7. Quarantine of Visitors:For people entering India from abroad, a health officer appointed by the central government is posted and authorized at the port of entry.

The health officer may ask for the aircraft journey logbook, which shows the places the aircraft visited. He may also inspect the aircraft, its passengers, and its crew, and subject them to medical examinations after their arrival.

The officer must follow specific precautions about communicable diseases that require a period of quarantine (such as yellow fever, plague, cholera, smallpox, typhus, and relapsing fever) and other infectious diseases that do not require a period of quarantine.

He may prohibit the embarkation on an aircraft of any person with symptoms of any quarantinable disease and any person whom the health officer considers likely to transmit infection.

Airline staff is required to report any suspected cases or passengers who in their opinion, from observations made in flight, may be suffering from symptoms of a quarantinable disease. 

With respect to Ebola, in early August 2014, the Health Ministry announced that “mandatory self-reporting is required at immigration.”

6. Right to move free

Quarantine affects the fundamental right “to move freely throughout the territory of India.” However, this right is subject to reasonable restrictions that the state may impose in the interest of public health.

7. Right to privacy

The Supreme Court of India has found that the right of privacy is an essential component of the right to life, but that it is not absolute and may be restricted to prevent crime or disorder, or to protect health, morals, or the rights and freedom of others.

State acts

Punjab Vaccination Act makes primary vaccination and revaccination of children compulsory throughout the state. 

Epidemic Diseases Act gives wide ranging powers to the states.

In case of such emergencies, the states delegate some of these powers to the deputy commissioners in the districts typically through state health acts or municipal corporation acts. 

 State and Municipal Governments  

A state government may also take measures and prescribe regulations for the inspection, vaccination, and inoculation of persons traveling by road or rail, including their segregation in a hospital, temporary accommodation, or otherwise, if such persons are suspected by the inspecting officer of being infected with any such disease.

A state government, by general or special order, may authorize a deputy commissioner to exercise, in relation to his district, all the powers under section 2 of the 1897 Act that are exercisable by the state government in relation to the state, other than to determine the manner in which and by whom any expenses are to be defrayed. 

Many of these powers are prescribed in Municipal Corporation Acts governing “major municipal areas,” or Public Health Acts that also provide municipal-level commissioners or collectors with quarantine or other powers. These can be in relation to removal of a person to separate premises for medical treatment, Cleansing or disinfecting any building or part of any building or any articles, taking special measures in case of the outbreak of dangerous or epidemic diseases.

 Civil Rights 

The ambit of section 2 of the Epidemic Diseases Act is wide enough to allow a state or a lower functionary in the administration, in dealing with an emergency caused by the outbreak of a dangerous disease, to seek or require the cooperation of the public or corporate bodies in the public or private sectors.  If the desired cooperation is not imminent, a regulation may be imposed.  Failure to obey or comply with restrictions imposed by such a regulation constitutes a punishable violation.

Judiciary

The judiciary in India ensures transparency in government actions and executive orders.  One can seek judicial review of executive orders and regulations.  The Parliament of India has also enacted a Freedom of Information Act, requiring transparency in government actions.

 (Source: https://www.loc.gov/law/help/health-emergencies/india.php)

International Regulations

PHEIC: mandates reporting to WHO about disease in question

The epidemic Act

2. Power to take special measures and prescribe regulations as to dangerous epidemic disease – (1) When at any time the [State Government] is satisfied that [the State] or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease, the  [State Government], if [it] thinks that the ordinary provisions of the law for the time being in force are insufficient for the purpose, may take, or require or empower any person to take, such measures and, by public notice, prescribe such temporary regulations to be observed by the public or by any person or class of persons as  [it] shall deem necessary to prevent the outbreak of such disease or the spread thereof, and may determine in what manner and by whom any expenses incurred (including compensation if any) shall be defrayed.

(1) . (2) In particular and without prejudice to the generality of the foregoing provisions, the  [State Government] may take measures and prescribe regulations for— (b) the inspection of persons travelling by railway or otherwise, and the segregation, in hospital, temporary accommodation or otherwise, of persons suspected by the inspecting officer of being infected with any such disease.

[2A. Powers of Central Government.—When the Central Government is satisfied that India or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease and that the ordinary provisions of the law for the time being in force are insufficient to prevent the outbreak of such disease or the spread thereof, the Central Government may take measures and prescribe regulations for the inspection of any ship or vessel leaving or arriving at any port in [the territories to which this Act extends] and for such detention thereof, or of any person intending to sail therein, or arriving thereby, as may be necessary.]

4. Penalty. —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 (45 of 1860).
5. Protection to persons acting under Act. —No suit or other legal proceeding shall lie against any person for anything done or in good faith intended to be done under this Act.

(Source: https://indiacode.nic.in/bitstream/123456789/10469/1/the_epidemic_diseases_act%2C_1897.pdf)

COVID-19

• Despite CDC protest, 14 Americans infected with coronavirus on the Diamond Princess cruise ship shared a plane back to the US with healthy passengers, separated by plastic sheeting. (New York Post)
• A US court temporarily blocked the government from sending nearly 50 people infected with a new virus from China to a Southern California city for quarantine after local officials argued that the plan lacked details about the protection of the community the outbreak. (Washington Post)
• Hong Kong police caught a part-time security guard at a shopping mall for allegedly writing on social media that multiple staff members had caught a fever and gone on sick leave. The messages caused panic and helped create paranoia.
• Singapore: Severe penalties for non-compliance of the quarantine order, including fines or jail time.
• Saudi Arabia is set to impose a fine of up to 500,000 riyals ($133,000) on people who do not disclose their health-related information and travel details at entry points  
• Italy PM puts citizens on lock down and threatens them with a fine (206 euros; around £178) or jail (3 months) if they leave quarantine zones (Daily Mail UK)
• IPC: Section 270: Malignant act likely to spread infection of disease danger­ous to life.—Whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
• Epidemic Disease Act, Essential Commodities Act, NLEM, Municipal corporation acts, state public health acts
• My rights to be tested.

Dr KK Aggarwal

President CMAAO, HCFI and Past National President IMA