CHALLENGES POSED BY COVID-19 -A LEGAL PERSPECTIVE

 

           

   

     CHALLENGES POSED by COVID-19 -A legal perspective

                                                                                    

ANIL K.  KHAWARE

 ADVOCATE  

The Covid-19 i.e Corona Virus Disease-19, commonly known as “corona” have caused havoc leading to worldwide catastrophe and the manner of its cosmopolitan spread is a matter of grave concern and more than Forty (40) Million peoples are already infected globally and about Three (3) Lakhs have died due to the Covid-19 outbreak. In India at this stage, more than a Crore of peoples are reported infected so far with Corona, though, about 95% of such people have come out of the morass. It is generally believed that Corona has made its way from Wuhan (China).The countries or the continents are no barrier to it and through mere touch or through aerosols it is transmitted. The magnitude of virulence is increasing every passing day. To put it in perspective, the “Corona” is a virus and is composed of lipoprotein and thrives only upon entering their host with trace of RNA (Ribonucleic acid) and then it makes its host its abode and makes the latter hostage. The “Corona” makes its way to the lungs of human to circumvent the respiratory tract and the host thereafter suffers the inevitable. The Corona, when absorbed by the cells of the ocular, nasal or buccal mucosa, changes its genetic code and converts them into aggressor and multiplier cell. The genesis of Corona as stated to “Wuhan”- a city in People republic of China and traversed to Italy, Spain, France, Britain, USA, Belgium, Korea, Iran, Australia, Africa amongst other countries. In fact the Corona has engulfed entire Europe, besides, vast part of Asia, North America, South America, Africa, and Australia. The vitriolic virus has thus pervaded the globe. Even the might of United States is severely invaded by the tiny organism and the world is in virtual standstill. India is also a worst sufferer. The Corona, therefore, is declared as pandemic by World Health Organization (WHO and whereas, the devising mechanism of its obliteration is necessary, but it is equally important to analyze it from the standpoint of law as to how to meet the menace, with a particular emphasis on India.

 

The events related to COVID-19 may need little chronology to appreciate its spread.

DATES	EVENTS
31.12.2019	China reported to World Health Organization (WHO)  pneumonia of unknown cause as detected in city of Wuhan
22/01/2020	WHO released statement relating to human to human transmission of novel corona virus in Wuhan
30/01/2020	WHO declared this outbreak as PHEIC (A Public Health Emergency of International Concern)
11/02/2020	WHO announced corona virus disease as COVID-l9
12/02/2020	WHO declared COVID-l9 as 'Pandemic
14/03/2020	The Disaster Management Division of Ministry Home Affairs, Government of India, decided treat COVID-l9 as a notified disaster
16/03/2020	Ministry of Health & Family Welfare, Government of India issued advisory on social distancing measure owing to the spread of COVID-l9, urging all States/ Union Territory Governments to adopt social distancing measures as a preventive strategy for implementation till 3l .03 2020

 

It is no gain saying that the epidemic or pandemic as old as the civilization itself. In fact, several diseases have afflicted the human race much before the start of civilization. The world has faced several of pandemics in centuries. For ready reference, some of the pandemics are listed below:

 

 

S.N	Pandemic	Remark
1.	Justinian's Plague	Goes back to 542 AD. Te earliest epidemic killing Millions. The outbreak first emerged in Constantinople as plague-ridden fleas thrived on black rats that munched on the grains brought from Egypt..It was quite deadly as even till 750 AD the havoc continued unabated in the Mediterranean regions.
2.	Great Bubonic Plague	Erupted in Europe in 1347.About 200 Millions were killed in about Four (4) years. The bacteria Yersinia pestis, which was also the culprit behind Justinian’s plague had wiped out a large number of the population and continued till 1351.
3.	The Great Plague of London	In around 1665, London came under the grips of the pandemic which lasted a year. In fact, it was the last widespread outbreak of bubonic plague in England and had wiped out 1/4th population of London.
4.	Small Pox	The outbreak was caused in Europe, Asia and Arabia. It was caused by a virus and about 1/3rd of infected persons had lost their lives
5.	Cholera	Initially reported in England around 19th century and had killed a huge population. The symptom of it was acute diarrhoeal infection caused due to the ingestion of food or water contaminated with the bacterium Vibrio  cholera
6.	Spanish Flu	Spread all over the world and named as Spanish flue. The flue had killed Crores of population and even in India itself have damage was inflicted due to this.

 Some of the modern day epidemic also includes Asian Flu, Hong Kong Flu , HIV/AIDS, the       SARS (Severe Acute Respiratory Syndrome) epidemic in 2005-06 and Ebola which spread in Africa in 2014.

 

                                                LAW TO TACKLE THE MENACE IN INDIA

In this conspectus, it will be worthwhile to find out the law enacted or applicable in India        so as to deal with it. The following are the law and its provisions:

                (i)           The Epidemic Diseases Act, 1897 (EDA)

                (ii)         THE DISASTER MANAGEMENT ACT, 2005 (DMA)

                (iii)        Section 188 of Indian Penal Code

                (iv)        Sections 269 & 270 of Indian Penal Code

                (v)         Section 505 of Indian penal Code

 It is indeed surprising that why India had no proper law to address pandemic till 2005,when Disaster Management act (DMA) was enacted, which is the only comprehensive Act related to epidemic. The EDA 1897 has been a summary Act and is a colonial legacy. Ironically, the Act itself is named as EDA and there has been no reference to pandemic in it. In fact, there is no reference to pandemic in DMA either. Neither of the Acts therefore  offered detailed provisions in the face of what are ongoing, though, DMA appear to be a  comprehensive Act. The fact, that behavior of mankind has undergone sea change over the  years and meeting such delinquencies or criminal acts does not find adequate reflection in  the punishment column and plausible acts or misdeeds of humans are also not suitably dealt with. The situation erupted during the covid-19 outbreak was not easily  comprehensible and therefore, the efforts are also made to cater to the need of such acts on the part of people. It is significant to point out that this pandemic is contagious and could  spread even body to body touch and hence the virus has also changed social dynamics and  consequent barrier in overcoming the malaise.   

THE SITUATION IN INDIA- A glimpse

                The Corona outbreak reflects a very sordid situation. We know of a term now i.e “corona warrior” which is beset with impediments in reaching out to the infected and the infected persons itself have reportedly been involved in stone pelting on such warriors for novel reasons.  We all know that The Corona Warriors are  health personnel comprising of Doctors, Nurses, “Asha workers” and Police. The Police have to accompany the warrior in view of various stone pelting incidents on them due to the fallacies surrounding the infected  persons. The acts of stoning, spitting on them and obscene gestures by some of them in the  length and  width of the country has bewildered all. The corona warriors in India has  faced peculiar problem which  was never seen before. The countrywide lockdown was  announced and when the medical staff and nurses  visited corona suspects for necessary  medical aid they were greeted with hostility Besides the congregation of people and their indifference have also appears to have contributed to it- be it Tablique gathered at Nizamuddin , New Delhi and the conglomerate  of large numbers of migrant workers from   New Delhi,  Mumbai, Surat, Hydeabad, Jaipur or in Vegetable Mandi in Delhi and elsewhere  In fact,  various F.I.R has  been registered  against the  people  during  the lockdown for their acts and thereby rendering the people  and the area vulnerable to the virus, hence, they were booked under DMA and EDA

                                                MEASURES UNDER EPIDEMIC DISEASES ACT 1897    

In the face of rising cases of attacks on Corona Warriors in various places in India during the     pandemic and due to the limitation of EDA or DMA as narrated above, the Uttar Pradesh Government has also invoked National Security Act 1980. The maximum period of detention under the Act is 12 months. As per the  provisions of the Act, the order can be  made by the District Magistrate or a Commissioner of Police under their respective  jurisdictions, but the detention is required to be reported to the State Government along with the grounds on which the order has been made. The order under the Act could remain in force for Twelve (12) months if approved by the State Government.

 Before going further, the relevant provisions of The Epidemic Diseases Act, 1897 (EDA)          may be read as under:

                2. Power to take special measures and prescribe regulations as to dangerous epidemic disease. –(1)

                When at any time [the Government] is satisfied that the State or any part thereof is visited by,  or threatened with, an outbreak of any dangerous epidemic disease, 1 [the 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.

                 (2) In particular and without prejudice to the generality of the foregoing provisions, the          Government may take measures and prescribe regulations for––               

                (a) Omitted.

                (b) The inspection of travellers, and the segregation, in hospital, temporary accommodation or otherwise, of persons suspected by the inspecting officer of being infected with any such disease.

                3. 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

                4. 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.

The Disaster Management Act, 2005

                India has taken the extreme measure of enforcing successive lockdowns and the 1^st    lockdown for 21 days was announced, as the number of people infected with the novel    corona virus had crossed 600. It was the first time a nation was shut under the  provisions of  the Disaster Management Act., 2005. This is also the first time a central  government has  issued directions of this magnitude to the states. The Disaster  Management Act provides  for a National Disaster Management Authority (NDMA) and    section 6 of the legislation deals  with powers of the authority—from which the  authority has issued these directions to the  state and central governments. Section  6(2)(i) of the Act authorises the NDMA, headed by the  Prime Minister, to take measures for “the prevention of disaster, or the mitigation or  preparedness and capacity building for dealing with the threatening disaster situation or disaster as it may consider necessary”. The Act also provisions for a national executive  authority, which exercises powers to issue guidelines that will be in effect during the  Lockdown.

The Disaster Management Act also casts a duty on the states to follow the directions   of the    NDMA as mandated under Section 38 of the Disaster Management Act. Though     health is a  state subject, still, the writ of the authority shall apply all over India.

As a sequel to the above discussion ,it is also necessary to cull out the relevant provisions of Disaster Management Act 2005. The section 51 of DMA encapsulates provision for imprisonment for Two (2) years for two kind of –(i) obstructing the public servant including those authorised by the authorities under DMA and (ii) refusing to comply with any directions issued by the officers/personnel under the DMA. The punishment is Two (2) years of imprisonment, if convicted and if the refusal leads to loss of lives or any imminent danger. Section 505 of Indian penal Code together with Section 54 of DMA could be invoked, for publication of or circulation of any rumour which is likely to cause any fear or alarm. The punishment prescribed is one (1) year under the DM and Three (3) years under section 505 of The Indian Penal Code. Under Section 52 of DMA whoever makes any false claim for obtaining “any relief, assistance,, repair, reconstruction or other benefits from any official/authority could be imprisoned for Two(2) years and fine also could be imposed. Conversely, in the event any official refuses to act on the direction of the authorities under the DMA, the violator could be sentenced to imprisonment and that can be extended to one year. However, in case any lawful ground is available to the officer which precluded the performance of duty or if any written permission is obtained by the officials , then such officer could be exempted from it. What is significant in this context is that sanction for prosecution from the State Government or Central Government shall not be necessary for prosecuting the erring officials. There is another dimension under the DMA. The officials authorized under the DMA can requisition for persons or material resources such as premises land and building Sheds or vehicles for rescue operation. If anyone refused to the requisition , the punishment in this regard could be upto One (1) years of imprisonment. Of course, the compensation under the DMA could be provided to the provider of resources. COMPLAINT UNDER DISASTER MANAGEMENT ACT 2005 The Central, State or District Authority could file a complaint or by national or State Government officials from Central or State Government. A court shall be thus empowered to take cognizance on the complaint, if filed. It is relevant to state that any person could be entitled to lodge a complaint, provided a notice of at least Thirty (30) days is given by such person entailing the intention to file the complaint for alleged offence. However, protective shield is accorded to the public servant, in case the action was taken in good faith. Similarly, under the EDA, no action or suit could be initiated against the acts of government officials, if done in good faith.

 

                                                The section 188 of Indian Penal Code

             The section 188 of Indian penal Code may also be apt to be referred in its context. The               provisions are as under:

Section 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 persons 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 tends 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. Similarly, Sections 269, 270, and 505, though, are not specified in the EDA (unlike section 188 of Indian Penal Code), however, the provisions of Sections 269,270 and 505 of Indian Penal Code could be still used and are being used by the police in case of registration of F.I.R or complaint. The moot point, however, is whether in the backdrop of Corona crisis, the provisions as elucidated above and is being further narrated below are adequate to deal with the pandemic situation and the difficulties faced in this regard? The imbroglio needed a complete obliteration with due codification of law and application of that. The Schedule I of Cr.P.C may be perused for its prescription, which is made applicable in this context, so far.                        Classification under Schedule 1 CrPC S.N SECTIONs (I.P.C) PARTICULARS Terms of punishment 1. 188 Disobedience to an order lawfully promulgated by a public servant, If such disobedience causes obstruction, annoyance or injury to persons lawfully employed 1.       Simple Imprisonment for 1 Month or Fine or Both Cognizable/Bailable 2. Part II of the section If such disobedience causes danger to human life, health or safety, etc.   Imprisonment of 6 Months or Fine of Rs 1000/- or Both Cognizable/Bailable 3. 269 Negligently doing any act known to be likely to spread infection of any disease dangerous to life  Imprisonment of 6 Months or Fine of Rs 1000/- or Both Cognizable/Bailable     4. 270 Malignantly doing any act known to be likely to spread infection of any disease dangerous to life Imprisonment of 2 years or Fine of Rs 1000/- or Both Cognizable/Bailable 5. 505 False statement, rumour etc, circulated with intent to cause mutiny or offence against the public peace   False statement rumour etc with intent to create enmity, hatred or ill will between different classes   False statement rumour etc made in place of worship etc with intent to create enmity, hatred or ill-will Imprisonment for 3 years or fine or both Non-Cognizable/ Non-Bailable Imprisonment for 3 years or fine or both Cognizable/ Non-Bailable Imprisonment for 5 years and fine Cognizable/ Non-Bailable

The Legal Framework after the Covid outbreak In the midst of the pandemic, while the government noted inadequacies of the existing provisions relating to epidemic, National Securities Act (NSA) was imposed in certain cases. It is relevant to point out that the regulations to enforce mandatory quarantine while a person is asymptomatic were not in place in India and only later on the realization had descended in authorities that the danger also emanates from asymptomatic patients. The steep rise in infection earlier was probably due to the reason that people were oblivious to probable danger from asymptomatic carrier. This would reflect as to how public healthcare laws in India fall short of meeting the needs of a pandemic situation. Even as the government ramps up efforts to tackle the COVID-19 pandemic, the primary law its resorts to is the 123-year old The Epidemic Diseases Act, 1897, that governs healthcare  emergencies in India. The colonial-era law, enacted to fight the bubonic plague in the erstwhile Bombay, comprises of four sections spread over just three pages. The primary issues facing administrators dealing with the pandemic situation is the federal structure of Indian democracy. If one peruse the Constitution of India, then it may be noted that Public health features in the state list under the Seventh Schedule of the Constitution. The Centre can only advise states to invoke the laws and regulations, not mandatorily impose it. “The power granted to the Centre under this Act was very limited, and it is the ultimate discretion of the state government to take a step by framing appropriate regulation, While the Union Government also declared the disease as a “notified disaster” under the Disaster Management Act, the fact remains that India did not have very effective dedicated legislation for a pandemic situation. An overarching law governing public healthcare  is a glaring gap in India’s fight against the COVID-19 pandemic. The Government of India has announced in the middle of March 2020 that all states and Union Territories should invoke provisions of Section 2 of the Epidemic Diseases Act, 1897 (EDA).Without iota of doubt, the aforesaid provisions are laconic and contains some sweeping statement with no specifics and particulars. On the other hand, though, THE DISASTER MANAGEMENT ACT, 2005 is quite comprehensive, still, the limitation of the Act is self evident in the face of difficulties faced to tackle the delinquent. Therefore, the Epidemic Diseases act 1897 stands amended vide an ordinance whreunder the Act is afforded with some more teeth. The ordinance was brought in to amend the century old Epidemic Diseases Act. The ordinance was promulgated on 22nd April 2020, when Doctors were to stage a symbolic protest seeking safe workplaces and under which any person who attacks a health worker who is treating Covid-19 cases can be jailed for a maximum of seven years. It was imperative in the midst of attack on corona warrior and various other matters such as fleeing of the suspect of “corona’ from Quarantine centre and even instances of Covid-19 patients having fleeing from hospital necessitated change in EDA and Government of India had promulgated ordinance bringing change in EDA.

The salient feature of the ordinance are as under

1. Whoever commits or abets the commitment of violence against health care worker, shall be punished with imprisonment ranging from 3 months to 5 years, and penalty ranging from Rs 50,000 to Two( 2) Lakhs.
2. In case of a very serious attack, the imprisonment may be for a minimum period of 6                        months and  maximum of 7 years, with penalty ranging from Rs 1 lakh to 5 lakh. 
3. Investigation into the incidents of attacks on doctors and healthcare workers has to be    conducted by a senior inspector and be completed within 30 days.
4.  The Court proceedings related to these cases shall also be conducted in a time-bound        manner, and have to be decided within a year.
5. The court shall presume that such person has committed such offence, unless the  contrary is proved.
6. In case of damage to vehicles or clinics of doctors or healthcare workers, the perpetrators would have to pay double the market cost of the damaged asset as  compensation.
7. Upon failure to pay the compensation awarded, such amount shall be recovered as an arrears of land revenue under the Revenue Recovery Act, 1890.
8.  Attacks on doctors and health workers is now a cognisable and non-bailable offence

Ordinance in the State of Uttar Pradesh Taking a stern view of the attacks against health workers, police personnel and sanitation  workers working at the frontline of the state’s fight against corona virus, the Uttar Pradesh government has promulgated Uttar Pradesh Public Health and Epidemic Disease Control Ordinance, 2020 to introduce harsher punishments for those found guilty of such crimes., provides for a maximum punishment of life term if “death be caused by intentional (COVID-19) affliction”. While Section 24 of the ordinance on “punishment for intentional affliction” provides for rigorous imprisonment of 2-5 years for any person found guilty of “intentionally” infecting another person with a contagious disease, Section 26 further prescribes rigorous imprisonment for a minimum of seven years “but may extend to imprisonment for life”. It also provides for punishment by way of a fine ranging from Rs 3 Lakh to Rs 5 Lakh.

                                                        THE GLOBAL WINDOW

                The kind of onslaught of Covid-19 across the globe may also drive one to see as to how the     world has dealt with the pandemic and what are their respective legal framework. 

                The International Health Regulations, or IHR (2005), represents an agreement between 196 countries including all WHO Member States to work together for global health security     through IHR, countries have agreed to build their capacities to detect, assess and report public health events

(i) United States: Under the Public Health and Service Act, the US Department of Health and Human  Services has laid down specific guidelines to assist states during health emergencies and prevent the spread of communicable diseases. In this context it will be apt to draw parallel vis a vis law in United States. The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) was enacted in 1988 whereunder United States Federal law was designed  to  bring  an orderly and systematic means of federal natural disaster assistance for state and local governments in carrying out their  responsibilities to aid citizens. The underlying objective of that being the aim of encouraging States and localities to brace for any eventualities and to devise a comprehensive plan to assess disaster preparedness and for ensuring better intergovernmental coordination in the face of a disaster,  encourage the use of insurance coverage, and provide federal assistance programs for losses due to a disaster. As a prelude to The Stafford Act, 1988 was in fact Disaster Relief Act of 1974.  It created the system in place today by which a presidential disaster declaration or an emergency declaration triggers   financial and physical assistance through the Federal Emergency management Agency (FEMA). The Act gives FEMA the responsibility for coordinating government-wide relief efforts. The Federal Response Plan includes contributions from 28 federal agencies and non-governmental organizations,    such as the American Red Cross. The Congress amended it by passing the Disaster Mitigation Act of 2000 in 2006 with the “Pets Evacuation and Transportation Standards Act, and again in 2018 with the Disaster Recovery Reform Act (DRRA).

The USA has invoked the STAFFORD ACT, enabling the President of United States to tap into  a $50 billion emergency fund for disaster relief. The President has invoked the “Public Health Services Act” , thereby enabling the government “to make and enforce such regulations as  are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the states or from one state  into any other state.” It may be recalled that in 2000, President Bill Clinton had invoked the STAFFORD ACT to respond to an outbreak of the West Nile virus in New York and New Jersey, and in 2019, President Trump invoked that Act to respond to flooding in Nebraska and Iowa.  The president also has invoked the Defence Production Act, which will enable him to direct private industry to allocate raw materials and prioritize the production of medical supplies, such as protective gear, ventilators, and other much-needed equipment and to direct the military to tap into its strategic reserves to accomplish    these goals.

              These authorities have also been used in other, less dire circumstances. 

Moreover, in the United States, the Department of Health and Human Services (HHS) has laid down specific guidelines to assist states during health emergencies and to prevent the spread of communicable diseases. The Robert T Stafford Act allowed President Donald Trump to unilaterally invoke an emergency. The HHS’ secretary can make grants and conduct investigations into the cause, treatment and prevention. Under the Federal Food, Drug and Cosmetic Act, the HHS Secretary can justify as emergency use of authorization of medical countermeasures, whereby unapproved drugs, vaccines, or countermeasures can be used in times of emergency. Such a provision does not exist in India.

                In fact, the United State has gone one step further in legislating The Covid-19           Accountability Act authorises President Donald Trump to impose sanctions on China if it fails to cooperate with a full investigation led by the US or its allies into the events that lead to the Covid-19 outbreak The legislation mandates the President to make a certification to Congress within 60 days of enactment that the People’s Republic of China has acted as per   the following, failing which impose sanction :

1. Provided a full and complete accounting to any COVID-19 related investigation  led by  the United States, its allies, or UN affiliate (World Health Organization); and
2. Closed all operating wet markets that have a potential to expose humans to health  risks through the introduction of zoonotic disease into the human population. 
3. Released all pro-democracy advocates in Hong Kong that were arrested in the post  COVID-19 crackdowns.

• As USA was reeling under the threat of Covid-19, On 28^th March 2020, in USA a bizarre incident was reported. A lady had sneezed and coughed in a departmental store deliberately on the grocery items. The goods worth US $34000/- worth were immediately destroyed by the Authorities and Anti Terrorism law was applied on the lady to deal with her acts. In this backdrop, in India, some people are found to be disdainfully negligent of the threats posed by Covid-19 and the hazard that it entails. Such persons have overtly and covertly aided the spread of the Covid-19. The infected persons are found responsible for spreading the virus by spitting on road and infected others fatally, perhaps in deliberate pursuit. Let us not be unmindful of threat that such acts possess and a recent case in Belgium shall be a pointer where a suspected Covid-19, infected person was found applying his saliva on the exit point of a local train gate and elsewhere with an implicit agenda of infecting others.
• In this context it is worth mentioning that Larry Klayman,  a citizen of Florida has instituted a class suit against the republic of China for propagating the deadly virus.  In this class action complaint, lead Plaintiffs Buzz Photo, Freedom Watch, Inc., Larry Klayman putative plaintiffs as members of the class and subclasses and all persons and entities similarly situated (collectively “Plaintiffs”) sue Defendant the People’s Republic of China and the other Defendants for seeking damages and equitable relief arising out of the creation and release, accidental or otherwise, of a variation of corona virus known as COVID-19 by the People's Republic of China and its agencies and officials as a biological weapon in violation of China's agreements under international treaties. The Germany and Australia is also stated to have raised certain issues and claims against China. Whether there shall be any further headway in this regard, the time only can testify.

                (ii) In Australia, for instance, Section 51 of the Constitution provides the Federal government with legislative powers to quarantine. An overarching law called the National Health  Security Act and Agreement has been put in place to abide by Australia’s obligations  towards the IHR.  The Australian Government’s 2011 National Health Emergency Response  Arrangements also highlights how the government will respond to public health emergencies.      

            (iii) Within the European Union (EU), EU Decision 1082/13 is the key legal instrument for               threats to health. They endorse compliance with the IHR. Both the IHR and Decision  required signatory states to develop National Plans for Pandemic Preparedness. Many   countries have plans in place, which can include measures, such as rationing of resources,  enforced isolation or quarantine, or seizure of goods and property. The WHO and the EU  also encourage the use of legal frameworks to support those plans.

                (iv) In Spain, all private hospitals have been nationalised in the wake of the pandemic. While              such a drastic measure may not be taken in India, but there should certainly be guidelines for public-private partnerships in the medical field.

                                                Inter State Migration of workers IN INDIA

                In India, another aspect deserving attention is the workers from and reverse migration of    workers due to the lockdown imposed for arresting the spread of  pandemic and consequent conglomeration of workers and their persistence to reach  their native state on foot, quite   an improbable task. It is alarming that such a  situation had crept in and it was further shocking that despite the existence of THE INTER-STATE MIGRANT WORKMEN (REGULATION OF EMPLOYMENT AND CONDITIONS OF SERVICE) ACT, 1979 (ISMWA),the same was never even taken reference to, leave alone its implementation. The Act has not  been followed by successive state governments, despite the stipulations of ISMWA. During the pandemic the workforce all over India were on roads with a view to reach their native  state and many of the workers began their journey on foot. This was appalling. The object    of the ISMWA appeared to have been given a complete go by. Ironically, the Act was enacted  with a view to safeguard the workers from any exploitation from    their contractors and to afford workable milieu. It clearly appears that probably most of  the contractors were    not even licensed, contrary to the provision of ISMWA and thus the workers interest were left  in lurch. The details of the workmen were therefore not even provided to the competent   authority as is envisaged in ISMWA. It should not be lost sight of that migrant workers are  entitled to displacement allowance, journey allowance and payment of wages during the journey, however what is seen during the pandemic that the workers were treated quite shabbily. No state appeared to have implemented the law in letter and spirit. The ISMWA may also need amendment to encompass various other aspects  in its ambit, but for the present, the issue is not being delved in. What is important is that a nelson eye  was turned    on ISMWA. The unfortunate deaths of many workmen near Aurangabad (Maharashtra) alongside the rail track is a grim reminder as to what could be avoided by proper implementation of law. The same holds good of various death of workers while embarking on journey to their native either on foot or on bicycle.     

The Epidemic Act did not meet thresholds under Article 19 and 21 of the Constitution. This is so, in as much as these relate to rights of healthcare personnel, travel restrictions, privacy rights, and investments needed to meet the healthcare challenge. Even though India is a signatory to the World Health Organization’s International Health Regulations (IHR), several gaps need to be plugged in domestic laws. For instance, a complete ban on commercial flights may not align with Article 43 of the IHR, which calls for proportionality of such bans to potential risk. Similarly, the privacy of a patient and disclosure of their medical information needs to balance with public needs. No such provision to  maintain this balance is available under the current laws. An overarching law could also include provisions for an emergency fund to deal with such situations. “The present framework does not give much attention to surveillance, vaccination and public health response either. Around the world, countries have laid great emphasis on strengthening their public healthcare laws to prepare themselves for such pandemics The National Security Act (NSA) has been slapped in several cases relating to attacks on healthcare workers in Indore and also elsewhere, as they were involved in pelting stones at the healthcare workers in Indore's Tatpatti Bakhal who were on their visit regarding corona virus.

·         Tablique incident at Nizamuddin, New Delhi and their dissemination in various parts of India and subsequent steep in the corona cases across the country may necessitate as to how such vicissitude coupled with some alleged deliberate acts of the peoples in spreading the pandemic could be curtailed by enforcing law. The acts against the law enforcers and even on the Doctors and healthcare workers treating then in various hospitals, apart from some unfortunate sporadic attacks being committed with impunity may only suggest that fine tuning of existing law whether in its codification or on its application deserve a fresh look as the law existing so far is not adequate.     

The mutant Covid

The mutant variant of covid-19 is also being reported of late in Britain and South Africa. The mutant which is variant of Covid-19 is reported to be more lethal. Obviously, the mutant virus has evolved from the parent virus. We know that sudden change in genetic material is called mutation. The genetic material is DNA or RNA. The DNA is composed of nitrogenous based I.e Adenine (A), Thymine (T), Guanine(G) and cytosine (C). In RNA, in place of Thymine Uracil (U) is present. The genetic material also has pentose sugar I.e ribose sugar in RNA and De-oxyribose sugar in DNA and phosphorus as components. The mutation occurs at gene level and is generally referred as point mutation. The alteration is caused in the double helix of DNA and/or single thread of RNA leading to mutation. Whereas mutation is the precursor of evolution, but mutation in microorganism and that too, disease causing microorganism can have more virulence and the effect of medication is thus negated. It is due to the fact that virus develops resistance to drugs due to change in gene contour and this enables the mutant variant of microorganism to withstand the onslaught from antibodies that may be developed by the host eco system. If the barrier of antibodies is breached, then such antigen would spread in the system and symptom of disease sets in. The Covid-19 variant therefore has to be seen in that perspective and mechanism of negation which is largely preempting shall have to be in vogue for the present. The effort of finding effective vaccination is still a far cry and it may take a while before a complete an defective vaccination is developed, bereft of any side effects or minimal side effects.

                                                        REMARK

THE DISASTER MANAGEMENT ACT, 2005 nowhere defines even epidemics, let alone “pandemic”. The Act therefore is vastly inadequate in as much it does not envisage how to deal with a pandemic or epidemics. Therefore, it is evident that in any event as per Indian law what we have Epidemic Diseases Act, 1897 (EPDA), Disaster Management act 2005, Section 188 and 505 of Indian penal Code and section 144 of Criminal Procedure Code which is vastly limited and cannot take care of contingencies like the Corona pandemic.  The law in India therefore needed a revisit and a complete overhaul. Recently, though, the law framed in this regard is revisited, the gaping hole still subsists.

The law and legislation is to be in place for all such eventualities. In this perspective, perhaps section 304 of Indian Penal Code may also be applied against Covid-19 carrier or such other carriers for trying to cause death of any persons by deliberately trying to spread the virus or other such pathogen and if death is indeed caused due to the act of such delinquent, then section 304 of Indian Penal Code may be the answer. In apt cases even section 302 of Indian Penal Code may also be invoked with 120 B of Indian Penal Code. The law in India therefore has to be reframed, re-formulated, re-promulgated and statutory sanctions against the offender should be in place by re-enacting the legislation and applying that with alacrity. As illustrated above, the application of section 188 of Indian Penal Code shall be vastly inadequate and even the ordinance promulgated may not be the answer. The section 304 of Indian Penal Code need to be applied in such specific case where the probable acts of spreading the contagious agent may lead to death of a person. The section 2 of Epidemic Diseases Act, 1897 may therefore be further amended so as to add the applicability of section 304/302 of Indian Penal Code in lieu of section 188 of Indian Penal Code or in addition to that in apt cases, so that a person may be charge-sheeted and tried under section 304/ 302 of Indian Penal Code which deals with culpable homicide not amounting to murder or of murder charges. Reframing of legislation, re-enacting of law and amendment in the existing Act or Acts shall therefore be a necessity. Similarly, the section 51, 52 of DMA 2005 may be suitably amended. The NSA applied in some select cases may not pass muster the courts in view of prescription of NSA, as the provisions of EDA or DMA may not be in sync with each other and therefore suitably amending the provisions in the existing Acts to make it more stringent may be contemplated with a view to fetter the provisions with such suitable provisions as may be more effective and also to withstand judicial scrutiny. However, for the present the concentration is on therapy and effective therapy at that.            

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