Co-Written by Aniket Sachan & Sakshi Agarwal

“Good health and Good Sense are great blessings and health begins when we are aware of the disease.” The vulnerable state of human civilisation can be seen from more than 35,016 deaths and 7,39,369 people infected with the disease (as on March 30, 2020, 13:35 GMT).[1] World Health Organization have declared Covid-19 as a pandemic. In the absence of any particular treaty or declaration regarding the notification of spread of deadly disease by the host state, the host nation generally undergoes a free ride. Many countries avoid diplomatic warnings as it would trigger the collapse of the domestic economy. In India, the cause of worry is its preparedness to tackle this outbreak, given the poor public healthcare system.

Legislative Framework

India has a range of regulatory frameworks in the form of acts to facilitate initiatives to improve public safety in the case of an outbreak. But, these laws are scattered and not assembled under common statute.  To tackle Coronavirus the Union Government fell back on colonial legislation, Epidemic Diseases Act, 1897, which specifically dealt with preventing transmission of hazardous epidemic diseases by conferring wide powers on Central[2]  and State Governments[3] and penalising the offenders[4]. The Act authorizes States to ban general meetings, restrict assembly, shut down schools and colleges and ask offices to pursue work from home. Further, the Central Government has delegated the power of home ministry to the health ministry under Section 10(2)(i) and 10(2)(l)[5] of Disaster Management Act, 2005.[6] This delegation of authority was in pursuance to Section 69[7]. As per this act, the Ministry of Health and Family Welfare regulated the sale of surgical masks, hand sanitizers and gloves and have added them as Essential goods under the Essential Commodity Act, 1955 to prevent hoarding and black marketing.[8] As per Section 54,[9] the authorities can punish persons involved in spreading false messages. Government is also taking recourse to Aircraft (Public Health) Rules, 1954 which, warrants a Health Officer to check citizens arriving from abroad at the airport entrance.[10] In furtherance of the guidelines issued by Health ministry, airport authorities screened travellers who had travel journey in affected nations. The administration can also take recourse to Sections 269, 270, 271 of Indian Penal Code to ensure effective enforcement of the public healthcare rules. For successive enforcement and effective regulation, we require the amalgamation of public safety laws to efficiently track the execution of reaction to an outbreak.[11] Thus, to manage disease outbreaks in India, a consolidated, detailed and realistic legal framework is required.

Judicial Approach

The right to health care is a human right and a fundamental right under the Indian Constitution and UDHR. The failure of the state in providing healthcare services amounts to the violation of this human and fundamental right. The Apex court of India in Paschim Banga Khet Mazdoor Samity vs. State of West Bengal[12] had held that providing adequate medical facilities to fellow citizens is an essential obligation of the Government. Nevertheless, we have seen the callous attitude and negligence of the Government in providing facilities such as infrastructure, resources, beds, ventilators and essential medicines in public hospitals.

In the wake of Coronavirus, Supreme Court of India had also put stay orders on tax recovery matters. In Darpan Sahu vs. State of UP, [13] Allahabad High Court held that ignorance of the fatal impact of COVID-19, would result in an emergency condition. People should not be forced to face litigation at the time of health crisis. The Supreme Court also took suo-moto cognizance of steps taken by State Governments to prevent congestion and implementation of social distancing in prisons.

Status of healthcare

“The right to the highest attainable standard of health” encompasses within itself plethora of legal obligations upon the state to provide for the best standard of health facilities to common public without any loopholes and discrimination. The effective implementation can be assured by strengthening the financial capacity of the state. The Prime Minister on March 20, 2020, announced the creation of COVID-19 Economic Response task force. However, the non-creation of Task Force is an evidence of lack of implementation in our nation.

India from its inception has neglected the health sector. The Government in 2020, increased budget allocation to ₹ 69,000 Crores for Healthcare from 63,860 Crore in the year 2019-2020.[14] This increment only amounts to 1.3% of GDP and is nominal keeping in mind the current inflation rate. This increment falls short of the goal of 2.5% of GDP spending on health by 2025.[15] Moreover, India’s spending on healthcare is relatively lesser than other BRICS nations. We are continuously spending huge amounts of GDP on defence, thereby adding hostility in the region instead of improving primary healthcare facilities in the country. Our long-term investment in the health sector will result in a positive stimulus in the nation’s GDP and legislative framework. It’s only when a massive epidemic or pandemic occur the healthcare comes to priority. Nevertheless, the Government should now adequately monitor the judicial usage of funds, healthcare services and should also allocate fund for uplifting the legal framework to control the epidemic.

The poor condition of the public healthcare system is not enough to battle the novel coronavirus. The public hospitals are entangled with the problems of shortage of essential medicines, less workforce and limited resources. This is illustrated from an instance of Agra where a woman was reported missing from quarantine room as she was reluctant to be in isolation at a Government Hospital owing to unhygienic sanitary conditions. Consequently, people are looking forward to the private healthcare facility despite knowing the fact that private hospitals are not equipped to deal with Covid-19. However, private hospitals target the intense wealth of India by providing a variety of luxury facilities thereby turning hospitals into luxury. For e.g.- The Fortis Memorial Research Institute, New Delhi promises luxurious artworks, fountains, convenience stores and a lounge where once can chill.

When you look at the doctor-patient ratio in India, we have just one allopathic Government doctor available for around 11,082 persons, when the recommended ratio is 1:1000 as prescribed by WHO.[16] The Government should learn from Spain where they had nationalized all their hospitals[17] to control the outbreak amidst lockdown. Only Government of Chhattisgarh,[18]  Delhi[19] and Bhilwara district authorities[20] have taken over the private hospitals to treat Covid-19 patients. Such pathetic condition of Indian Healthcare system cast the biggest challenge to prevent the spread of deadly disease. Lack of ventilators, beds, trained professionals and lack of fund is the biggest impediment in curbing spread of COVID-19.

With the continuous rise in Corona positive patients in India, isolation wards in most public hospital across states are reaching their limits. The stage-III of Corona Transmission will pose a serious threat to densely populated India. In the meantime, there would be a desperate shortage of medication personnel, pharmaceuticals, ventilators, beds in sustaining the deadly disease. Procuring these requirements would become a serious challenge. Health-care workers are working longer than their duty time to cure patients’ and are more exposed to risk. With sporadic rise in infected patients, the public health network and clinics in India would be easily overwhelmed. When health staff is more prone to get sick or infected, they are less likely to return to work. Hence, Finance Minister of India, declared ₹50 Lakh insurance for Corona Warriors.[21] However, this initiative by the Government falls short because of other shortcomings in our Healthcare system. Effective public health planning needs coordination between voluntary groups, corporations, regulatory authorities, hospitals and public health agencies. Thus we need primary healthcare system and not super speciality to meet the pandemic.

Low spending by the Indian Government towards the health sector has been a cause for the growing inequities and poor quality of healthcare services. We must remember that when the whole world was discussing measures to tackle the outbreak of the Covid-19, our parliamentarians were engaged in deciding political hegemony in Madhya Pradesh. Government very lately announced relief package under Pradhan Mantri Garib Kalyan Yojana worth ₹ 1.70 crore.[22]  Though 80 crore beneficiaries are covered in this scheme, if we acknowledge the ground realities, many beneficiaries will not be able to get the entitlements. The Government is required to make arrangements for a daily wage worker who eats a meal with his wage.  He before getting infected by Covid-19 might die of hunger.

Ironically, the spread of coronavirus started from rich and upper class but this virus is also punishing destitute. Work from home is only for those who work in an office but domestic workers, autorickshaw drivers, sweepers and other such workmen earn their living being in close contact with other people. Hence, the concepts like social distancing and work from home are not for the employees in the unorganised sector. The 21 day lockdown period lacks the plan for the Rabi season. This callousness of the Government will not only have repercussions of the economy but will also affect the survival of the farmers.

Conclusion

Today, we lack a concrete plan to safeguard the interests of the most vulnerable section of the nation who fear being killed by hunger rather than from coronavirus. Staying indoors is not an option for the daily wage workers.[23] The challenge here is to strike a balance between the interest of the poor and interests of the nation at large. The comprehensive treatment program to cope up this intermittent disease requires medical workforce, supply of medications and services, social distancing, isolation and other innovative methods to deliver care. A comprehensive health network analysis and legal framework is urgently needed. Apart from the legal framework, the Government also needs to work on ground realities. Gaps and loopholes in the monitoring of the infectious disease needs to be resolved. In order to broaden the disease prevention program and to control epidemics, India needs to reconsider and update its health strategy.[24]  Central Governments should establish a robust public health system, with competent leadership and a professionally trained management team that can handle an effective disease prevention process. It is rightly said that India’s survival during 21 days lockdown would largely depend upon the capacity of the state to provide essential services to those who have no prospects of income during this period else such people will be forced to move out to generate income for such necessity.

Aniket Sachan, 3rd Year student at Dr. Ram Manohar Lohiya National Law University, Lucknow; aniket.sachan10@gmail.com

Sakshi Agarwal, 3rd Year student at Dr. Ram Manohar Lohiya National Law University, Lucknow; agarwal27sakshi@gmail.com

 

[1] Worldometer, COVID-19 CORONAVIRUS PANDEMIC, (March 26, 2020, 14:20 PM), https://www.worldometers.info/coronavirus/.

[2] The Epidemic Act, 1897, §. 2A.

[3] The Epidemic Act, 1897, §. 2.

[4] The Epidemic Act, 1897, §. 3.

[5] The Disaster Management Act, 2005, §. 10(2)(i), 10(2)(l).

[6]  Business Standard, Coronavirus: Govt. vests powers of Home secretary under DM Act with Health secy, (March 14, 2020, 11:19 AM), https://www.business-standard.com/article/pti-stories/coronavirus-govt-vests-powers-of-home-secretary-under-dm-act-with-health-secy-120031101709_1.html.

[7] The Disaster Management Act, 2005, §. 69.

[8] Press Information Bureau, Government invoke Disaster Management Act to ensure prices regulation and availability of Surgical and protective mask, Hand sanitizer and Gloves, (March 19, 2020, 14:23 PM), https://pib.gov.in/newsite/PrintRelease.aspx?relid=200240.

Economic Times, Government puts masks and hand sanitisers under Essential Commodities Act, , (March 19, 2020, 16:08 PM), https://economictimes.indiatimes.com/news/politics-and-nation/government-puts-masks-and-hand-sanitisers-under-essential-commodities-act/articleshow/74616781.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst.

[9] The Disaster Management Act, 2005, §. 54.

[10] Aircraft (Public Health) Rules, 1954, R. 2(8).

[11] Aniket Sachan & Sakshi Agarwal, India’s Legal Response To Covid-19, (March 30, 2020, 18:23 PM) http://www.legalserviceindia.com/legal/article-1820-india-s-legal-response-to-covid-19.html

[12] Paschim Banga Khet Mazdoor Samity vs. State of West Bengal, (1996) 4 SCC 37.

[13] Darpan Sahu vs. State of UP, Writ-C No.- 7014 of 2020.

[14] Press Information Bureau, Summary of Union Budget 2020-21, (March 26, 2020, 14:02 PM), https://pib.gov.in/newsite/PrintRelease.aspx?relid=197837.

[15] PB Jaykumar, Healthcare allocation in Budget 2020 5.7% lower than last budget, (March 26, 2020, 14:08 PM), https://www.businesstoday.in/union-budget-2020/decoding-the-budget/healthcare-allocation-budget-2020-5-7-percent-lower-last-budget/story/395265.html.

[16]Ministry of Health and Family Welfare, National Health Profile, (Mar. 27, 2020, 16:46 PM), http://www.cbhidghs.nic.in/Ebook/National%20Health%20Profile-2018%20(e-Book)/files/assets/common/downloads/files/NHP%202018.pdf.

[17] Adam Payne, Spain has nationalised all of its private hospitals as the country goes into coronavirus lockdown, (Mar. 27, 2020, 17:58 PM), https://www.businessinsider.in/politics/news/spain-has-nationalised-all-of-its-private-hospitals-as-the-country-goes-into-coronavirus-lockdown/articleshow/74658200.cms.

[18] Cherrupreet Kaur,  Chhattisgarh govt takes over private hospital to treat coronavirus cases, (Mar. 28, 2020, 08:46 AM), https://timesofindia.indiatimes.com/city/raipur/chhattisgarh-govt-takes-over-private-hospital-to-treat-coronavirus-cases/articleshow/74835041.cms.

[19] Teena Thacker & Nidhi Sharma, Covid-19 in India: Cautious government involves private sector in treating patients, (Mar. 28, 2020, 09:17 AM),  https://economictimes.indiatimes.com/industry/healthcare/biotech/healthcare/cautious-govt-involves-private-sector/articleshow/74681205.cms?from=mdr.

[20] Joe C Mathew & Chitranjan Kumar, Coronavirus: Bhilwara district authorities take over 5 private hospitals, guest houses, resorts, (Mar. 28, 2020, 10:20 AM), https://www.businesstoday.in/current/economy-politics/covid-19-bhilwara-district-authorities-take-over-5-private-hospital-guest-houses-resort/story/399349.html.

[21] CNBC, Govt. announces Rs 50 lakh per person insurance cover for corona warriors, (Mar. 27, 2020, 22:43 PM), https://www.cnbctv18.com/finance/govt-announces-rs-50-lakh-per-person-insurance-cover-for-corona-warriors-5561371.htm.

[22] Press Trust of India, Finance Minister announces Rs 1.70 Lakh Crore relief package under Pradhan Mantri Garib Kalyan Yojana for the poor to help them fight the battle against Corona Virus, (Mar 26, 2020, 12:28 PM), https://pib.gov.in/PressReleseDetail.aspx?PRID=1608345.

[23] BBC News, India’s poorest ‘fear hunger may kill us before coronavirus’, (March 26, 2020, 10:50 AM) https://www.bbc.com/news/world-asia-india-52002734.

[24] T.J. John, L. Dandona, V.P. Sharma, Continuing challenge of infectious diseases in India, (March 20, 2020, 15:41 PM), https://www.ncbi.nlm.nih.gov/pubmed/21227500.


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