Contributed by Nubee Naved
Introduction
In March 2020, while many nations had been issuing advisories and lockdowns due to the spread of Covid-19, the Indian Central Government suddenly announced a 21-day lockdown which was described as the most strict in the world. This resulted in the complete closure of private and public premises throughout the country, except for those involved in essential services i.e. healthcare, food and dairy, military, etc. The lockdown also led to the nationwide migrant crisis where millions of poor migrant workers could not find any resources in the metropolitan cities to support themselves and were forced to make their way home in extreme conditions. A contributing factor to the rise in cases, the crisis led to the first wave of Covid-19 cases across the country. Signs of hope emerged as the number of cases decreased in January 2021 and the Central Government announced the administration of vaccines across the country. However, when lockdown measures were lifted, India’s second wave slowly devastated the public health system. The country was reporting over 400,000 cases per day and over 3000 deaths daily with a shortage of hospital beds, staff, and oxygen, worsening the situation day by day. While vaccinations struggled to keep up with the number of infections, the state governments again imposed lockdowns that were not lifted until June 2021. The entire episode pushed various sections of Indian society to assess the reasons behind the catastrophic loss of life and gross mismanagement of the pandemic. While many cited the spread of the new B.1.617 variant in different parts of the country, others were more critical of religious gatherings, election rallies, and poor enforcement of basic social distancing rules by state and central authorities. That said, the lack of public health legislation has exposed the approach towards an adversity that has turned into a national tragedy. Until October 2020, more than six months into the pandemic, only six states in India had public health legislation. The Public Health (Prevention, Control, and Management of Epidemics, Bio-Terrorism, and Disasters) Bill, 2017 was drafted by Central Government agencies but was never tabled in Parliament. The Bill sought to repeal the existing framework and aimed to create a harmonious and federalist structure to combat public health emergencies in India. However, lack of enthusiasm on part of the public and government resulted in its expiration.
In circumstances that have called for a drastic change in law or policy, India has often relied on different jurisdictions to formulate changes in its laws. Canadian laws and judicial decisions have been a source for upholding fundamental rights of Indian citizens in the past e.g. rights of the LGBTQIA+ community and the right to privacy. Therefore it would be logical to turn to Canada for understanding certain elements of public health laws that can be imbibed in future legislation. This article analyzes the public health laws in Canada and India that were invoked to handle the pandemic and also assesses crucial decisions laid down by different courts in both countries regarding the same. Lastly, it points out some aspects of the Canadian public health framework that can be adopted in India.
Understanding the Two Legal Frameworks
The Canadian public health framework, at the federal level, is distinct in many ways from that of India. The federal government’s jurisdiction is clearly defined through important legislation that provides for a robust foundation to handle public health emergencies and pandemic planning. The Federal Public Health Agency Act, 2006 established a federal public health agency that was responsible for providing recommendations to both the federal and the provincial governments on how to tackle the disease. The legislation also provides for the appointment of a Chief Public Health Officer, who is responsible for communicating effective strategies on various public health issues based on sound scientific advice. The Emergencies Act, 1985 allows the federal government to act in instances where the emergency is of such a nature that it is beyond the capacity or the authority of the province to effectively respond to the crisis. However, an emergency has not been declared under this Act. The federal government has instead relied upon the federal Quarantine Act, 2005 which places a limit on the movement of people and goods coming to Canada in case of a public health emergency. To curb the spread of the disease at the national border, the federal authorities placed limits on those traveling to the country and placed mandatory quarantine orders for 14 days on such travelers. With the border shut, it was the provincial governments that took the lead in declaring an emergency in their respective jurisdictions and invoked legislative measures to contain the spread of the virus and deliver healthcare services.
In Ontario, the provincial government invoked the Emergency Management and Civil Protection Act 1990 to declare a province-wide emergency and enforce fundamental protocols like the closure of businesses and social distancing. The same was done in British Columbia through the Emergency Program Act, 1996. Inter-provincial travel was also affected as Quebec closed its borders to residents of Ontario between April and May 2020 and implemented province-wide quarantine orders. Back in Ontario, the Health Protection Promotion Act, 1990 was invoked to allow public health officers to issue quarantine orders to persons or a class of persons to isolate themselves. These orders ultimately evolved to either stay-at-home orders or lockdowns, depending upon the gravity of circumstances throughout 2020. As the number of cases fluctuated throughout the spring and fall of 2020, provincial governments also sought to lift the stay-at-home orders that were previously given. To do so, a gradual approach was necessary. The Ontario government developed a reopening plan that was based on three different stages. Each stage required people and businesses to follow unique social gathering and physical distancing measures along with sanitation recommendations.
However, with more relaxations, came a greater risk of infections and Canada ultimately saw a record surge of Covid cases from November 2020 going well into April 2021. While Canada had started inoculating people in December 2020, Prime Minister Trudeau in April 2021 stated that the country was scrambling to deal with a third wave. Around the same time, Ontario announced new stay-at-home orders that allowed the police to stop and question people that were believed to be violating the orders. The police were granted powers to randomly ask people their address, their reason for travel and allowed authorities to penalize individuals for non-compliance. Facing backlash from various organizations, and with police departments refusing to enforce orders, the Ontario Government eventually rolled back these orders and called them a mistake. Despite frequent criticism being aimed at both federal and various provincial governments in terms of governance and vaccination rates, Canada has fortunately not seen a complete breakdown of the public health care system. The combination of legislation and rules, that provided for the first response to such an emergency acted as a groundwork for authorities working to contain the spread of the disease at a granular level. The existence of a clear legal structure that establishes boundaries in terms of the management of public health emergencies, can be an example for developing nations. On the other hand, the absence of the same can have dire consequences, as was witnessed in India.
Unlike the Constitution of Canada, the Indian Constitution, under the Seventh Schedule of Article 246, states that both the Central and State Government are responsible for making laws with regards to the prevention of infectious diseases. The Indian legal response to the pandemic was principally based on two legislations: The Epidemic Diseases Act, 1897 (EDA) and the Disaster Management Act, 2005 (DMA). The former was enacted by the British Government during the colonial era, whereas the latter was enacted after the Indian coasts were devastated by the Indian Ocean Tsunami in 2004. The EDA, which has previously been described as a draconian enactment, does not fundamentally define the term “epidemic diseases”. It then begs the question: how does one assess and act upon a disease when there is no transparent or scientific metric to recognize it under the law? With the answer presumably left to the executive branch to define, EDA simply puts forth the powers that both the State and Central Governments have in controlling an epidemic. The State Government has the authority to inspect and sequester those who are infected with the epidemic in a hospital or a segregated facility to halt any further infections. The Central Government, on the other hand, is empowered to put in place travel restrictions on both domestic and international levels. The Act also gave state authorities the right to prosecute people who are found to disobey orders under this law. Given the pandemic, the Parliament decided to make amendments to the EDA, approximately 123 years after its enactment, to protect health care workers and police personnel who were being attacked by people in different parts of the country.
The principal issue with the EDA is the excessive authority it grants to different government departments without developing a mechanism for coordination between State and Central Governments. At the state level, the authorities have primarily relied on Non-Pharmaceutical Interventions (NPI) to combat the spread of the disease. These are interventions that are taken when there is no one concrete cure to the disease available for the states, and included closures of both public and private premises. The task of enforcing these interventions was primarily up to the local police that often took inordinate measures, resulting in violent encounters with citizens. Such instances pose serious questions with regards to the accountability of government authorities, likes of which go unanswered under the existing framework of EDA.
The second legislation i.e. the Disaster Management Act, 2005 was introduced to deal with “natural or man-made disasters” and created the National Disaster Management Authority to overlook its functions. The Authority is headed by the Prime Minister and is responsible for formulating plans, procedures, and guidelines that need to be followed by both State and Central Government for combating a disaster. The most striking aspect of this law is that it clothes the Central Government with a blanket power to issue directions to State Governments or State Authorities, and the employees of such state or local authorities are bound to comply with such orders. DMA also has an overriding effect over any other law in effect when the former has been invoked (Section 72) and provides legal immunity to officers and employees of the Central, State, and Local Governments acting in their official capacity under the law (Section 74). The different mandates of both, EDA and DMA, present a rather convoluted picture of how the executive can mitigate and prevent a pandemic. The EDA reinforces the presumption that the State Governments may formulate rules to control the disease within their jurisdictions. However, the DMA’s overriding effect has the potential to nullify orders implemented by states at the same time. The friction between the two can injure a cardinal principle of governance amidst a pandemic i.e. cooperative federalism.
The same was evident at the end of the first wave when State Governments blamed the Central Government for failing to address the red flags raised by the former in the lack of public health infrastructure and poor preparedness for a possible second wave. The lack of funds, medical and oxygen supplies, and poor communication between Central and State Authorities resulted in a rapid increase of cases by April 2021. The Central Government had constituted a group of secretaries and ministers in March 2020 who were responsible for formulating clear communication channels with the State Governments, and issuing requisite orders based on the demands of various states. However, as the cases went down between December 2020 and January 2021, the number of regular meetings between these groups to coordinate the future response to the pandemic also went down. This was one of several contributing factors that had resulted in repeated disagreements between the states and the Central Government. The discord between the two did nothing but cause massive confusion among the public in terms of who to rely on for clear guidance. As the loopholes in governance lay bare for the world to witness, it was up to the courts to take suo-moto cognizance of issues relating to the pandemic and issue orders for the public, State, and Central Governments to follow.
The Indian legal response to the pandemic was principally based on two legislations: the Epidemic Diseases Act, 1897 (EDA) and the Disaster Management Act, 2005 (DMA).|| (Source: pixabay // ronstik / 8 images)
Comparing the Judicial Approach
The concept of suo-moto cognizance in India finds its roots under Article 226 and Article 32 of the Indian Constitution which endows “epistolary jurisdiction” upon the High Courts and the Indian Supreme Court. Article 226 applies to State Appellate Courts (High Courts) whereas Article 32 applies to the Supreme Court. Both provisions not only allow the courts to entertain writ applications but act as constitutional checks on the powers of the executive. The Supreme Court has unequivocally stated in the past that it does not sit as a silent spectator where fundamental rights of the citizens are grossly violated, making it unnecessary for such victims to even approach the court for relief. For example, a mere letter from bonded laborers to the Supreme Court was sufficient for the court to take cognizance of the conditions of victims and called for the Central Government to provide relief in the 1980s. This approach has developed a sweeping form of judicial activism in India that is usually seen in extraordinary cases, with the pandemic being one of them. While the courts have not overtaken fundamental functions of the legislative or executive branch, we have seen it assist the State and Central Governments through the formulation of guidelines and recommendations.
During the migrant crisis, the Supreme Court took cognizance of the issue and laid down a slate of guidelines for the authorities to safely help the workers travel to their native destinations through state transport services. It also directed the states to set up counseling centers meant for employment services in different parts of the country. This was done to help mostly day-to-day laborers to find daily employment during the pandemic. While this was one of the biggest concerns to come out of the first wave, the Supreme Court again sprung to action during the second wave when it took cognizance of several issues plaguing the country. These basically included the supply of oxygen and essential drugs along with recommendations for augmenting the healthcare force. In Re: Distribution of Essential Supplies and Services During Pandemic (Re Distribution of Essential Supplies), the court directed the Central Government to create a buffer emergency stock of oxygen in cases where hospitals were facing acute shortage of oxygen. This was to be done through coordinating with State governments via a 24×7 virtual room that monitors the real-time supply of oxygen stocks throughout the country. In terms of supply of essential drugs, the Court acknowledged that the pricing of drugs like Remdesivir, Tociluzumab, Ivermectin, Methylprednisolone, etc. was exorbitant. Therefore, it directed the Central Government to cap the prices under the Drug Price Control Order, 2013 to make it affordable and accessible to the public. As people were scrambling for access to hospitals, oxygen, and medicines, the Central and State Governments had to meet a separate challenge: effectively inoculating a billion people.
The Central Government had implemented the “Liberalized Pricing and Accelerated National COVID-19 Vaccination Strategy” in May 2021. Under this policy, private vaccine manufacturers were at liberty to implement a separate procurement price for the Central Government for vaccinating persons above 45 years of age and a different price for the State Governments for vaccinating the persons between 18-44 years of age. The policy had many disadvantages: manufacturers had the potential to hold a monopoly over pricing and could sell them at any price that they want. It could impact persons between 18-44 years that belonged to economically backward classes. Furthermore, differential pricing meant unequal access to vaccines for people belonging to economically underdeveloped states. In a subsequent order issued in Re Distribution of Essential Supplies, the court found the policy to prima facie arbitrary and irrational. While the Central Government argued that any intervention in implementing this policy would amount to judicial overreach, the Supreme Court disagreed on how the principle of separation of powers is to be seen in view of the pandemic.
The court clarified that it exercised jurisdiction to assess if the concerned policy conforms to the standards of reasonableness, militates against manifest arbitrariness, and protects the right to life of all persons. Its jurisdiction was rather dialogic where it provided a forum to different stakeholders to put forward their constitutional grievances in terms of managing the pandemic. The executive branch’s policies were part of these deliberations to evaluate them and assess whether they withstand constitutional scrutiny. It also observed that while judges are not health experts, public health emergencies do not allow public officials carte blanche to disregard the Constitution for as long as the medical problem persists. In doing so the Court relied upon the US Supreme Court’s opinions in Roman Catholic Diocese of Brooklyn, New York vs Cuomo, and Calvary Chapel Dayton Valley vs Steve Sisolak, Governor of Nevada.
Canada’s position, as compared to India, was poles apart in terms of judicial decisions. This is because the courts have largely upheld the decisions rules, regulations, and executive orders invoked during the pandemic. Furthermore, the situation in Canada in terms of caseload, deaths, and the overall management of the crisis has not been as grave as India’s, due to which one does not see the similar levels of judicial activism in both the countries. The same can be corroborated from several decisions laid down by various courts in the country. In Taylor v. Newfoundland and Labrador, a challenge was brought against the provincial Government’s decision to limit entry to the province. The fundamental issue revolved around Section 28(1)(h) of the provincial Public Health Protection and Promotion Act, 2018 which authorizes the Chief Medical officer of Health to make restrictions on entry to the province during a public health emergency. The court held that Section 28(1)(h) was a valid law that was very well within the legislative mandate of the province and did not violate the constitutional rights of the Applicant. Similarly, in Ingram v. Alberta (Chief Medical Officer of Health), the restrictions enforced on entry in places of worship were challenged in the Alberta Court of Queen’s Bench. The Court ultimately dismissed the petition stating that the restrictions were constitutional as per the powers endowed upon the government under Alberta’s Public Health Act, 2000. Courts and tribunals also followed a deferential approach to government restrictions where legal challenges were brought against in-store mask mandates or retail store lockdowns. The glaring difference in the response to the pandemic begs the question: Would we have seen a similar judicial approach in India if it would have had a robust public healthcare foundation?
The concept of suo-moto cognizance in India finds its roots under Article 226 and Article 32 of the Indian Constitution which endows “epistolary jurisdiction” upon the High Courts and the Indian Supreme Court.|| (Source: pixabay // succo / 964 images)
Possible Takeaways from Canadian Public Healthcare Laws
The current framework operating within the sphere of DMA and EDA in India has run its course, especially in terms of managing a pandemic of the magnitude of Covid-19. Therefore, a law that clearly defines the power of the Central Government and decentralizes the authority to manage public health emergencies to State Government and local authorities would be a welcome step. Each state should be at the liberty to formulate legislation along the lines of a federal model law, that lays down the blueprint for how authorities should act amid such emergencies. Furthermore, a clear separation of powers between the two branches of the executive would avoid any overlap in terms of how laws are to be enforced. It should ideally define what constitutes a “public health emergency” in the first place and what should be the extent powers available to the Central Government as a first response.
On the central front, an establishment of a Public Health Agency and an Appointment of a “National Public Health Officer”, along the lines of Canada’s Public Health Act, 2006, seems logical. Such an agency should effectively cooperate with not only state authorities but also foreign governments and international organizations to carve out effective strategies for combating future pandemics. In terms of minimum qualification required for a National Public Health Officer, it should be imperative that such an authority should have a degree and considerable experience in the field of public health. The quintessential job of her office should be to issue guidelines and make recommendations for the Central Government to follow based on proven scientific evidence. This will potentially avoid hesitancy among the public concerning precautionary measures to be taken against diseases and the efficacy of vaccines to combat them.
One of the many objectives of drafting public health legislation is to move away from a style of governance that depends on NPIs for public compliance. In such situations, states often resort to measures that involve overdependence on local law enforcement. It is extremely important to have clear scheme at the local level that calls for risk assessment and identifying the existing health infrastructure that may be needed to handle a public health emergency. Drawing emergency plans for municipalities, establishing health facilities, training health professionals, sensitization of local law enforcement with regards to patients can be some of the steps that can be incorporated in state legislations. Some of these elements are also part of Ontario’s Emergency Management and Civil Protection Act, 1990. A public health emergency law at the state level can empower local municipal councillors, mayors, and public health experts to coordinate and respond adequately with dependence on police limited to extraordinary circumstances. This is important as such legislations can prevent the engagement of police officials who are not well trained to deal with health issues or inexperienced when it comes to enforcing public health measures. Similarly, the sensitization of police officers in handling such issues is a much-needed tool in dealing with such an emergency. Repeated instances of excessive force used by police officials can instill public mistrust in an institution that was established to protect the public in the first place.
A shared criticism of both Canada and India has been with regards to digital surveillance and the rights of patients. In Ontario, the Emergency Management and Civil Protection Act, 1990, authorized police officers and paramedics to access personal medical records of people and their status with regards to Covid-19. This included a patient’s name, address, and date of birth. State Governments in India allowed people to get themselves tested provided they submit details of their unique identification cards (Aadhar Cards) that included their names, addresses, date of births, and phone numbers. The same order was upheld in New Delhi by the Delhi High Court in September 2020. However, the lack of critical privacy laws and digital infrastructure makes medical records easily susceptible to a data breach. In the state of Kerala, the country saw its biggest data breach when several private hospitals had their servers hacked and the data of thousands of patients, collected since 2015, was leaked on the internet. The leak included not only Covid-19 test reports but details of patients’ history, diagnostic reports, and other details regarding hospitalizations. To this end, a public health emergency law can ensure that ethical standards are established, under which state officials can ensure accountability in terms of what kind of data needs to be disclosed to hospitals and private health facilities.
Conclusion
A groundwork that entails modern tools of public preparedness, based on scientific evidence, along with ethical legal enforcement, is necessary for future waves of the pandemic. The loss of life in India, which has reportedly been undercounted, is a testament to the fact that it has been missing this groundwork. It is certainly in these cases that India can look for potential solutions in its foreign counterparts like Canada. There is no doubt that a comparative analysis based solely on the effects of the pandemic between India and Canada may appear to be unfair. However, a closer look into the rules and regulations passed by democratic institutions, operating on common law principles shared by both the countries, signals a dramatic change needed on part of India. It is for this reason that Indian authorities should create robust a foundation that is based on cooperative federalism and clear decentralization of power. A legislation that encourages health officers to manage the healthcare needs of the public rather than excessive reliance upon police officers to enforce every order of the executive. Finally, protecting the privacy of patients who are forced to disclose personal information to private health facilities should be a priority under an ideal public health framework. A combination of these facets will allow India to set a base for dealing with future pandemics and would instill greater confidence in the public in terms of who to turn to in desperate times.
Nubee Naved is an attorney currently practicing in New Delhi, India. He has an LL.M. from the University of Toronto’s Faculty of Law and is accredited by the National Committee on Accreditation (Federation of Law Societies of Canada).
McGill Journal of Law and Health 