The following is a guest post by Tariq Ahmad, a foreign law specialist in the Global Legal Research Directorate of the Law Library of Congress. Tariq has previously contributed posts on Islamic Law in Pakistan – Global Legal Collection Highlights, the Law Library’s 2013 Panel Discussion on Islamic Law, Sedition Law in India, and FALQ posts on Proposals to Reform Pakistan’s Blasphemy Laws and Article 370 and the Removal of Jammu and Kashmir’s Special Status. This blog post is part of our Frequently Asked Legal Questions series.
This post provides an overview of some of India’s responses to Covid-19 (or novel coronavirus) by the union (or central) government and at the state level. According to the World Health Organization (WHO) as of March 19, 2020, ““166 COVID-19 cases (141 Indians and 25 foreign nationals) have been reported in 18 states/union territories. These include 15 who have recovered and 3 reported deaths. Hospital isolation of all confirmed cases, tracing and home quarantine of the contacts is ongoing.” The states of Maharastra, Kerala, Karnataka and Uttar Pradesh appear to be the most affected.
1. What is the constitutional and legal framework for the management of epidemics and health emergencies?
India is a union of twenty-eight states and seven territories, with a constitutional division of legislative responsibilities between the union government and the states that are enumerated by legislative subject lists in the Seventh Schedule of India’s Constitution. Both the union government and the state governments are constitutionally empowered to legislate on matters related to public health. The union law deals with port quarantine, including in connection with seamen’s and marine hospitals, and interstate quarantine. State legislatures may provide for matters relating to public health and sanitation, hospitals, dispensaries, and prevention of animal diseases. The union government and states have concurrent jurisdiction to prevent transmission from one state to another of infectious or contagious diseases or pests affecting humans, animals, or plants.
The Epidemic Diseases Act 1897, is a 125 year old British colonial era law, is the main legislative framework at the union level for the prevention and spread of dangerous epidemic diseases. It was enacted to “tackle the epidemic of bubonic plague that broke out in the then Bombay state at the time.” According to one news report, it has been “historically used to contain the spread of various diseases — swine flu, cholera, malaria and dengue.” Section 2A of the Act empowers the union government to take necessary measures and prescribe regulations to deal with dangerous epidemic disease at ports of entry and exit. Under section 2, states are empowered to take special measures or promulgate regulations to deal with epidemics within their jurisdictions. Thus, any state government, when satisfied that any part of its territory is threatened with an outbreak of a dangerous disease, and upon determination that the ordinary provisions of the law are insufficient for the purpose, may adopt or authorize all measures, including inspection of traveling persons and quarantine, to prevent the outbreak of the disease. Section 3 stipulates that any person who disobeys any regulation or order made under the 1897 Act may be charged with an offense under the Indian Penal Code and a person is liable, upon conviction, to a sentence of simple imprisonment for one month, a fine, or both. Section 4 states that no suit or legal proceeding will be initiated against any person or authority for anything done, or in good faith intended to be done, under the Act.
The law has been described as “archaic,” having “major limitations” including placing “too much emphasis on isolation or quarantine measures, but is silent on the other scientific methods of outbreak prevention and control, such as vaccination, surveillance and organised public health response.” Nor, according to one report, does it have provisions “to speedily set up management systems required for a coordinated and concerted response.” Some states have amended the law as far as it is applicable in their jurisdictions with “regard to introduction of isolation or quarantine of infected patients, travel or movement restrictions, prohibition of mass gatherings, closure of educational and other institutions, compulsory vaccination, etc.” In addition, some states have their own health acts, but as one expert has put it, these vary in “quality and content” and are “policing” acts aimed at controlling epidemics and do not deal with coordinated and scientific responses to prevent and tackle outbreaks.”
2. What measures has the government taken to contain the virus?
On the directions of Prime Minister Modi, a high level Group of Ministers (GOM) was “constituted to review, monitor and evaluate the preparedness and measures taken regarding management” of novel coronavirus disease (COVID-19) in the country. The Ministry of Health and Family Welfare (MoHFW) has been coordinating the efforts of the central government “in order to mitigate the impact of the outbreak in India.” On March 11, 2020, the GOM decided that the MoHFW should advise all state and union territories to invoke section 2 of the Epidemic Disease Act, 1897, so that all advisories being issued by the MoHFW, the states and union territories, are enforceable. On the same day, the union government invoked section 69 of the Disaster Management Act, 2005, to delegate powers of the Home Secretary, who is chairman of the National Executive Committee (NEC), which is a coordinating and monitoring body for disaster management, to the secretary of the MoHFW. Unlike the Epidemic Disease Act, this law “provides for an exhaustive administrative set up for disaster preparedness.” On March 14 the union government declared COVID-19 as a notified disaster and assistance is available under the State Disaster Response Fund (SDRF), which was established also under the Disaster Management Act.
Here are just some of the guidelines and guidance recently issued by the MoHFW (for a complete list click here):
- Advisory on social distancing measure in view of spread of COVID-19 disease
- Guidelines to states/UTs for quarantine of passengers for COVID 19 coming from China, Democratic Republic of Korea, France, Germany, Spain, Italy, Iran for airport screening
- Discharge policy for suspect or confirmed novel coronavirus (2019-nCoV) cases
- Guidelines on clinical management of severe acute respiratory illness (SARI) in suspect/confirmed novel coronavirus (nCoV) cases
- Guidance on surveillance for human infection with 2019-nCoV
- National guidelines for infection prevention and control in healthcare facilities
- Guidance for sample collection, packaging and transportation for novel coronavirus
- Guidelines on use of masks by public
- Guidelines for home quarantine
- Standard operating procedure (SOP) for COVID-19 management – international cruise ships at major Indian ports
Some states and union territories have also issued emergency measures and regulations (Karnataka being the first State to issue regulations) for their own jurisdictions pursuant to the Epidemic Disease Act to deal with COVID-19:
- The Delhi Epidemic Diseases, COVID-19 Regulations, 2020
- The Maharashtra Epidemic Diseases COVID-19 Regulations, 2020
- Punjab Epidemic Diseases, COVID-19 Regulations, 2020
- The Himachal Pradesh Epidemic Disease (COVID-19) Regulations, 2020
These regulations and measures vary but can include provisions on duties and obligations of hospitals and laboratories, powers of district administrations to implement containment measures (sealing off geographical areas, barring entry or exit of containment area, designating quarantine facilities, and closure of schools, offices, etc. and banning mass gatherings), and combatting COVID-19 related misinformation. The WHO also stated that various measures have been taken by central and state/union territory ministries “in terms of strengthened community surveillance, quarantine facilities, isolation wards, adequate PPEs, trained manpower, rapid response teams for management of COVID-19.”
3. What are some of the travel and other visa restrictions that India has imposed in response to COVID-19?
India has been issuing travel advisories from January 17, 2020, with increasingly more stringent travel restrictions as the virus grew more virulent and global. On March 11, 2020, the government of India imposed visa and other travel restrictions that are enumerated in a consolidated advisory published by the Ministry of Home Affairs’ Bureau of Immigration (the bureau also has an FAQ document on the new restrictions). The advisory suspends most visas of those who have not entered into India, including all tourist visas, and went into effect on March 13, 2020. It does not apply to visas issued to official passport holders, such as diplomats, members of the UN or other international organizations, those on “[e]mployment, project visas and those who are operating aircrew of scheduled commercial airlines.”
Under the new advisory, travel to India for Overseas Citizenship of India (OCI) card holders is also suspended until April 15, 2020. This does not apply to OCI card holders who are already in India presently. Any foreign national (including OCI cardholder) who “intends to travel to India for compelling reasons may contact the nearest Indian Mission for a fresh visa.”
The Ministry of Health and Family Welfare has also issued compliance restrictions that must be followed:
i. Passengers traveling from/having visited Italy or Republic of Korea and desirous of entering India will need certificate of having tested negative for COVID-19 from the designated laboratories authorized by the health authorities of these countries. This is in enforcement since 0000 hrs of 10th March, 2020 and is a temporary measure till cases of COVID-19 subside.
ii. All incoming travelers, including Indian nationals, arriving from or having visited China, Italy, Iran, Republic of Korea, France, Spain and Germany after 15th February, 2020 shall be quarantined for a minimum period of 14 days. This will come into effect from 1200 GMT on 13th March 2020 at the port of departure.
iii. Incoming travelers, including Indian nationals, are advised to avoid non-essential travel and are informed that they can be quarantined for a minimum of 14 days on their arrival in India.
iv. Indian nationals are further strongly advised to refrain from travelling to China, Italy, Iran, Republic of Korea, Japan, France, Spain and Germany.
Additional travel advisories published on March 16 and 17 have temporarily prohibited travelers from entering India from Afghanistan, Philippines, Malaysia, the European Union, the European Free Trade Association, Turkey and United Kingdom and expanded compulsory quarantine for additional countries. As the situation and response are changing daily, for a complete list of travel advisories visit the Ministry of Health and Family Welfare website and for the current travel and visa restrictions related to Covid-19 visit the Bureau of Immigration website.