The healthcare sector is at an impasse with COVID-19 unveiling a host of issues that have been neglected in the past. While healthcare in India has made significant strides, there are hurdles to tackle in terms of the provision of quality healthcare to the masses emerging from a shared vision between the Centre and the states.
Legal Apparatus
The pandemic has exposed the void created by the absence of a legislation that could guide a strategic response to public health emergencies. India’s COVID-19 response was nothing short of a reflexive reaction. States and union territories issued notifications under the provisions of the archaic Epidemic Disease Act, 1897. However, since the Act’s inception, there has been no attempt to lay down these ‘rules, regulations and measures’ or define their scope.
The Act does not elaborate on the ‘obligations’ of the state or the central government. A careful reading of the Act makes it evident that the few provisions it comprises are preventive in nature and do not address the aftermath of the outbreak — including treatment or distribution of a vaccine. The legislation itself fails to define crucial terms such as ‘social distancing’, ‘epidemic’, ‘quarantine’ and ‘pandemic’, or provide for their implementation.
The Disaster Management Act, 2005 was another legislation that was invoked to tackle the outbreak by classifying it as a ‘notified disaster’. The Act does not explicitly mention ‘epidemics’ in its definition of a disaster. The legal ambit and competency of the DMA in tackling a public health emergency has been a serious concern as the Act and its provisions were not drafted for a large-scale health crisis.
The EDA and the DMA which were used in conjunction to supplement each other are insufficient as legal instruments. Provisions that account for quarantining, isolation, decontamination of areas, treatment and vaccination are entirely absent in both the Acts. These loopholes in the ad-hoc legal apparatus also imply that the government may not be held liable for its oversight on these aspects of their response to an epidemic.
Reviving Elements Of Lapsed Bills
In recent years, an attempt was made to replace the EDA to tackle inevitable health crises inflicted by epidemics or bioterrorism in the future. The Public Health (Prevention, Control and Management of Epidemics, Bio-Terrorism and Disasters) Bill was drafted in 2017 as a joint effort between The National Centre for Disease Control (NCDC) and the Directorate General of Health Services (DGHS).
The Bill had provisions that gave sweeping powers to the state government and local authorities to prepare and implement a comprehensive response to a public health emergency. The command to take appropriate measures to ‘prevent, control and manage’ was decentralised at the state and district level. The measures included, among others, quarantining, isolating and restricting movement of people exposed to a disease, undertaking decontamination, disinfection of areas and providing necessary treatment or vaccination to persons suffering from a disease. In public interest, the Centre was accorded the power to take the same measures as specified for the State and local bodies.
It was also empowered to issue the immediate plan of action which could be adopted by the State and district authorities, and amended as per their unique position. The Bill also called for the rescindment of the EDA. However, its passage in Parliament lost momentum due to a lack of political will.
This Bill would have been the precise legislation to put into effect when COVID-19 struck. On the other hand, the vast literature, experiences, failures and successes emerging from the response to the outbreak in these months can act as an essential guide to drafting an improved version of the Public Health Bill, 2017.
Public Health Cadre
Similarly, the National Health Bill, 2009 that was formulated to provide a comprehensive legal framework for the provision of public health services, had crucial elements that are found amiss in the present legislation. It envisioned a national and state public health board to formulate policies on health and provide a response mechanism for health emergencies.
Having a specialised autonomous body can formulate clear guidelines on possible public health threats and define the roles of the Centre, state and communities, making it easier for governments in times of crisis to take swift action that is backed by scientific evidence.
India's COVID experience shows that interventions and coordination among and between various stakeholders, including the administrative mechanisms, institutional arrangements (government and non-governmental), media, social workers, law enforcement agencies, technology, domain experts and academia, finance and economy, etc. are critical for effective strategy-making in tackling a pandemic.
On a closer look, it opens up the debate on the need for the establishment of a permanent Public Healthcare Cadre which would be a collective of the stakeholders stated above. It reiterates the point that the public healthcare should not be confined to health infrastructure and the number of doctors and nurses alone, but a permanent cadre comprising all the relevant stakeholders. The body should be responsible for creating a forward-looking response framework for any public health eventualities.
As the economy and healthcare systems try to emerge from the crisis, there is a need to reconsider how to build a system that is ready and responsive in order to prevent and protect the public from emerging threats.
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