How well is India prepared to legally manage the next pandemic?
“One of our faults as humans is that we are susceptible to repeat our mistakes. Our history impacts us in different forms and ways. For us to understand how and why our present world is the way it is, we will have to look back for answers” – Edmund Burke
?
1.?????Introduction:
This article explores the history of pandemic management, examines the legal landscape of the response to its threat with a specific focus on India’s?Epidemic Diseases Act, 1897; further analyzing the role of legal, ethical considerations for pandemic preparedness.
???????????There have been?recent calls?to?update?this colonial law as it does not provide guidelines to individual states to act, prevent or mitigate epidemics, allowing them to take extraordinary measures only at the time of a dangerous epidemic disease. Further, the Act does not establish any coordination mechanism between states and the union government at the time of a dangerous pandemic outbreak. The first part of the article of the thesis engages in the investigation of the restrictive executive policies that have shaped over the last few centuries in response to infectious diseases, pandemics and epidemics. It further presents my observations regarding the long-term usage of policies with regard to pandemic control prior to the emergence of HIV which had an adverse impact on a wide range of human rights, with the pandemic being used to justify quarantine, confinement, restriction on movement and other measures which have led to a sustained rights trade-offs for the purported larger benefit of public health. ?The second part of the chapter focusses on the shortcomings of India’s Epidemic law; further stressing upon the utilisation of past learnings, as well as current practices to make effective regulations for pandemic control in the country.
2.?????Past Pandemics- Any lessons learnt?
Pandemics and epidemics have been a central part of human history; a focal point of human sociology, social codes and behavioural norms; a substantial challenge for medicine, science and technology; a peril to economic solidarity and national-international development; and an extraordinary defiance to governance and law.?Historically, health emergencies have been a focal point of human civilization; historical evidence suggest that health crisis have been justified exceptional and extraordinary exercise of (executive) powers to contain the infection and spread. ?A comparative historical investigation of pandemics can reveal nature, pattern, and response towards pandemic from state, society and law within a historical prism. At first glance it seems that the disease and infection are the central characters of a pandemic but a historical, social and governance investigation of ‘The Big Five Pandemics’ before Covid-19 chronologically: Plague(s), Cholera, Influenza(s), Spanish Flu and Human Immune Deficiency Virus (HIV) reveal historical, social and governance paradigms of pandemics.
?????????Historical investigation establishes exercise of executive powers as the substantial and perpetual response of governments across timeline. Ancient Roman Empire faced several pandemics: Antonine Plague (165-80 CE), the Plague of Cyprian (250-65 CE), and the Justinianic Plague (541-44 CE) and extensively applied emergency powers[1] in the form of dictatorship (Roman model of Governing through any emergency whether due to war or armed conflict or natural calamity or pandemics). The Roman model was based on direct executive approval in which the Senate could direct the consuls to appoint a dictator for up to six months to deal with emergency expeditiously[2]. Although this power was developed to handle foreign invasion and military clash but pandemic was considered no less than a wartime emergency. Governing through contagion by emergency powers was a political, social and economic necessity for Roman Empire, because it was a loosely integrated congeries of subsistence-level societies with lack of centralized authority to handle pandemic both sociologically and politically.
?????????Black Plague of the Middle Ages killed an estimated 40% to 60% of the people in Europe, Africa, and Middle East[3]. First identifiable and traceable legal mechanism for governing through contagion is also found during Black Plague pandemic between 1348- 1397, currently popular pandemic governance terms, concepts and restrictions like social distancing, quarantine and self-isolation was legally introduced in medieval times during European fight against Black Plague infamously referred as Black Death[4]. The Adriatic port city of Ragusa was first to pass legislation requiring the mandatory quarantine of all incoming ships and trade caravans in order to screen for infection. Mark Bailey in his book “After the Black Death: Economy, Society, and the Law in Fourteenth Century England” has elaborated on governance through contagion during and after Black Death in England, “The Black Death provides a prominent and early example of a government taking decisive action at a moment of national crisis to protect what it regarded as the welfare of its people and to promote its notion of a good society”. The world has been witnessing a severe pandemic every century[5] and several decadal epidemics with competence to converge into pandemics at any time of progression[6]. A historical and sociological investigation of pandemics reveals use of extra-ordinary executive powers across civilizations, geographies and political orientations. One of the primary lessons from historical analysis of pandemic is that even if the timings and severity of a pandemic could not be predicted; but laws, society, health and state could be strengthened to govern through and throughout contagion with theoretical justification and applicative principles for application of pandemic emergency powers.
?????????A more contemporary comparison could be drawn in the time frame of last two centuries, with reference to Cholera epidemic in Europe and South Asia (India) and global Influenza pandemic of the twentieth century. In 19th century, while using executive powers to curtail Cholera pandemic state formation contributed to the development of medical-military modernity that focused on identifying pathogen while ignoring the social and economic consequences of closing cities and cutting food supplies[7], the terrible affliction was spread from its home in India across to Afghanistan , Russia as trade began to increase with the combined effect of British industrialization and the creation of the British raj [8]. The disease spread in waves like any other pandemic starting from India in 1817, spreading in China, Japan, Southeast Asia and East Africa; the second wave swept across Europe and North Africa and North America. States used emergency powers to contain the pandemic for example Prussian authorities imposed stricter controls on movement of goods, people, absurd regulations like burial of Cholera victims only after nightfall and using death penalty as a threat against violation of quarantine. Use of extraordinary and executive powers had led to popular resentments to aggressive and violent disobedience of governing through contagion (pandemic restrictions) across Europe ultimately resulting into unsuccessful military cordons, quarantine and policy measures. In the colonial world situation was far worse with little to no space for public resentment and use of extraordinary powers by the colonial states in Asia and Africa disrupted the food supply chains in India and Africa that has led to biggest famine in human history.
?????????One of the major pandemics that occurred during 20th century was the infamous Spanish flu of 1919. The World Health Organisation declared the Spanish flu of 1918-1919 (H1N1) as an “exceptional, and the deadliest event in human history.” If we translate the rate of death associated with the 1918 influenza virus to that in current population, there could be 1.7 million deaths in the United States and around 360 million global deaths[9]. These pandemics have occurred during and after the first and second world wars providing perfect breeding ground for pandemic, states have used extraordinary emergency powers to combat pandemic that further resulted in world-wide violent protest against pandemic restrictions. During the 20th century pandemics, legislation, institutions and expertise was under-prepared and extremely stressed during the wars; this further resulted in the formation of deadliest pandemic of human civilization. Like other pandemics, this has also triggered the biggest economic slowdown, substantially reduced global GDP and hugely impacted human-animal-genome-society-state relationships. The executive powers exercised for public health reasons treated citizens as the enemy and reinforced the philosophy of original public health legislation which classified diseased persons as a public health nuisance to be removed and excluded from society for the benefit of all.
?????????The aspirations of the post-War, post-colonial world emerged with the ideas of integrated mobility, porous borders for trade, infrastructure development and employment which were in sharp contrast to the dividing borders of the past. The international migration of labour increased in volume and was seen as a solution to post-war labour shortage and demographic insufficiency.[10] Thus, never in the past, was the issue of right to freedom of movement so central to the human rights model as at the time of the emergence of the virus in the early 1980’s.?
?????????Post-war modern states understood the need for greater cooperation on economic, political front to meet common shared challenges and goals. But even with the new ideas of world order and with the vast history of managing pandemics, most states were underprepared for a health crisis like the HIV and were unable to appropriately deal with it on account of legal and policy vacuum. Many essential questions with respect to pandemic preparations were still unanswered at the time when HIV emerged on the global scene-?for instance, identification of legal or policy impediments for achieving higher preparedness or with regard to the collaborative initiatives for reducing the impact of epidemic or why states have consistently slipped into the same kind of response to public health issues and why has it been difficult to prepare remedies and practices to follow evidence-based actions. Only a few states had legal instrument and mechanism to handle pandemic, India being one of them. Yet, when HIV emerged on the global scene, states began to shut their borders, isolate, arrest infected foreign nationals, which especially jeopardised the conditions of blue-collar workers. Thus, the ability of states to learn from health emergencies will determine not only their success in responding to future pandemics but also other global challenges. But during the course of last more than three decades the much-needed pro-active discourse remained largely ignored until the Covid 19 pandemic hit the world.?
?
3.?????Epidemic Diseases Act, 1897 (Amended): Is the Colonial law still relevant?
While the present judicial and legislative system in India owes much to the efforts of the British regime, its first legislation concerning prevention of contagious diseases, was enacted by India’s colonial masters to control the spread of the bubonic plague in the erstwhile Bombay Presidency.[11] The vast history of utilization of the EDA, 1897 reveals how extra-legal constitutional provisions have been utilized both by the British Indian government and the post-Independent Indian state, further making their case stronger by consistently using open ended terms like ‘security of the state’, ‘national threat’, ‘imminent danger’, etc. to construct pandemic policies.
?????????The Act suffers from several shortcomings, unclear definitions, non-conformity with normative framework concerning right to health, privacy, freedom of movement and the principles of Siracusa. The Act faces some inherent problems; it does not define ‘epidemic’ and makes vague references to contagious diseases.?Section 2?of the Act, the state government is empowered to use appropriate authority to inspect, segregate and detain persons suspected to be infected by such dangerous epidemic disease in hospitals or temporary setups. Under?section 2A, the Central government is empowered to formulate regulations to control the epidemic, including travel restrictions, examinations and inspections of any ships or vessels leaving from or arriving at ports.?Section 188 of the Indian Penal Code?(IPC) is imposed as deterrent for disobedience, including penalties for violating regulations, prescribed under?section 3. Lastly, the Act does not provide for procedural guarantees against abuse of State power of interference with privacy of individuals. Furthermore, the Epidemic Disease (Amendment) Bill, 2020, has not addressed any of these concerns and merely aims to safeguard, protect the healthcare workers against violence.
4.?????Need for holistic policy and legislative response for pandemics:
Faced with an unprecedented public health crisis and its dire cascading economic and social consequences, governments across the world have been tasked with responding rapidly, efficiently and coherently to a series of challenges – from coordinating emergency responses to managing the immediate economic fallout due to lockdown measures and determining a timeline and scope for lifting lockdown measures. The advent of Covid-19 also led to a global discussion about the advance readiness against pandemics and health crisis, including coordination with communities, underscoring the requirement for greater investments for global pandemic preparedness for health infrastructure, while respecting rights to build trust. In this regard, the EDA, 1896, within its limited scope of formulating coercive, derogatory policies of isolation, quarantine makes no effort to look for scientific or evidence-based mechanism to manage contagious diseases. Even if we explore the state responses to coronavirus pandemic, we find the same to be fragmented. States such as Delhi, Tamil Nadu, Karnataka have formulated rules, guidelines and programmes with national, state level advisories but there seems to be lack of coordination amongst states as well. Today, we can reasonably presume that the Indian Government will take steps in regulating the spread of epidemics and will bring forth a comprehensive legislation which shall take into consideration the modern-day realities and control measures for the spread of such diseases.
[1] Historians have diversity of opinions on application of emergency powers to handle most prominent epidemics in Roman Empire but modern historians have found various evidences in support of application of emergency powers to contain pandemics in ancient Roman Empire. See, Meier M. The “Justinianic Plague”: the economic consequences of the pandemic in the eastern Roman empire and its cultural and religious effects. Early Medieval Europe. 2016; 24(3):267-292. Also see, Little, L. (Ed.). (2006). Plague and the End of Antiquity: The Pandemic of 541–750. Cambridge: Cambridge University Press.
[2]?Ferejohn, John & Pasquale Pasquino. "The law of the exception: A typology of emergency powers."?International Journal of Constitutional Law?2, no. 2 (2004), Online < https://muchanut.haifa.ac.il/index.php/en/component/k2/item/228-ferejphn-and-pasquino-he-law-of-the-exception-a-typology-of-emergency-powers>
[3] Green, H., Monica, ‘Pandemic disease in the medieval world rethinking the black death’, ARC Medieval Press, Volume I, 2015, print
[4] Dave Roos, Social Distancing and Quarantine were used in Medieval times to fight the Black Death,
27 March 2020, History Blog, https://www.history.com/news/quarantine-black-death-medieva
[5] Barry, J. M. The Great Influenza: The epic story of the deadliest plague in history, Penguin Books, 2004, print
[6] Phillips, H., & Killingray,D. ‘Introduction. The Spanish Influenza Pandemic of 1918-1919, Routledge, 2003, print
[7] Alex de Waal, Book- New Pandemics, Old Politics: Two Hundread Years of War on Disease and its Alternatives, Polity,2021, print
[8] Evans, R.J.,Epidemics and Revolutions: Cholera in Nineteenth Century Europe. Past & Present, 120,1988, ?https://www.jstor.org/stable/650924
[9] World Health Organization on Past Pandemics, See https://www.euro.who.int/en/healthtopics/communicable-diseases/influenza/pandemic-influenza/past-pandemi
[10] Castles, S., and M.J. Miller. “The Age of Migration”. Basingstoke: Palgrave MacMillan (2009), print