COVID-19: India’s Constitutional and Legal Framework for Public Health Emergencies and Need of Comprehensive Healthcare Law in India (Part 1)

Introduction

The outbreak of COVID-19 in early 2020 exposed critical gaps in India’s legal framework for public health emergencies. As the virus spread across the nation, the government invoked two primary legislative instruments to manage the crisis: the colonial-era Epidemic Diseases Act of 1897 and the Disaster Management Act of 2005. This pandemic marked the first time in independent India’s history that a nationwide biological disaster necessitated such extensive use of emergency powers, raising important questions about the adequacy of existing legal frameworks and the fundamental right to health. The crisis revealed that while India possesses constitutional provisions and statutory mechanisms to address epidemics, these tools remain fragmented, outdated, and insufficient to address modern public health challenges.

Constitutional Framework for Health and Epidemics

Right to Health Under Article 21

The Indian Constitution does not explicitly recognize health as a fundamental right, yet the judiciary has progressively interpreted the right to life under Article 21 to encompass the right to health and healthcare. The Supreme Court has consistently held that life means more than mere animal existence and includes the right to live with human dignity, which necessarily encompasses access to adequate healthcare facilities.

In Paschim Banga Khet Mazdoor Samity v. State of West Bengal [1], the Supreme Court delivered a landmark judgment establishing that the right to health forms an integral component of the right to life. The case involved an agricultural laborer named Hakim Seikh who suffered serious head injuries after falling from a train and was denied admission to multiple government hospitals in Calcutta due to unavailability of beds. The Court held that the State has a constitutional obligation to provide adequate medical facilities and that failure to provide timely medical treatment constitutes a violation of Article 21. The Court awarded compensation and directed the State Government to ensure that similar incidents do not recur by improving healthcare infrastructure.

This principle was further developed in Consumer Education and Research Centre v. Union of India [2], where the Court recognized that the right to health and medical aid to protect workers’ health and vigor, both during service and post-retirement, is a fundamental right under Article 21. The Court emphasized that Article 21 imposes an obligation on the State to safeguard the right to life of every person, and preservation of human life is of paramount importance.

Directive Principles and State Obligations

While fundamental rights under Part III of the Constitution are justiciable and enforceable through courts, the Directive Principles of State Policy under Part IV provide the ideological foundation for the State’s health obligations. Article 47 specifically imposes a duty on the State to raise the level of nutrition and standard of living and to improve public health as among its primary duties. The article mandates that the State shall endeavor to bring about prohibition of consumption of intoxicating drinks and drugs which are injurious to health, except for medicinal purposes.

Article 39 directs the State to ensure that workers, men and women, have the right to an adequate means of livelihood and that the health and strength of workers and children are not abused. Although these Directive Principles are non-justiciable under Article 37, the Supreme Court has repeatedly held that they must inform and guide the interpretation of fundamental rights. The Court has clarified that while Directive Principles cannot be enforced in courts, they are nevertheless fundamental in governance and the State is bound to apply these principles in making laws.

Legislative Framework for Epidemic Control

The Epidemic Diseases Act, 1897

The Epidemic Diseases Act was enacted on February 4, 1897, during British colonial rule to combat the bubonic plague outbreak in Bombay Presidency [3]. Despite being over a century old, this legislation remains the primary legal instrument for epidemic control in India. The Act is remarkably brief, consisting of only four substantive sections, yet it grants sweeping powers to both Central and State governments.

Section 2 of the Act empowers State Governments to take special measures when satisfied that the State or any part thereof is visited by or threatened with an outbreak of any dangerous epidemic disease. When ordinary provisions of law are deemed insufficient, the State Government may take measures and prescribe temporary regulations to prevent the outbreak or spread of disease. These regulations can include inspection of persons traveling by railway or otherwise and segregation of persons suspected of being infected in hospitals or temporary accommodations.

Section 2A provides similar powers to the Central Government with respect to vessels, trains, buses, aircraft, and other modes of transport crossing state boundaries or arriving from international ports. The Central Government may prescribe regulations for inspection and detention of persons and conveyances as necessary to prevent the spread of dangerous epidemic diseases.

Under Section 3, any person disobeying regulations or orders made under the Act shall be deemed to have committed an offence punishable under Section 188 of the Indian Penal Code, which provides for imprisonment up to six months and fine up to one thousand rupees for disobedience to order duly promulgated by a public servant. In cases where such disobedience causes or tends to cause danger to human life, health or safety, the punishment may be enhanced.

Section 4 provides legal protection to government officials and persons acting under the Act by stipulating that no suit or legal proceeding shall lie against any person for anything done or in good faith intended to be done under the Act.

Amendment During COVID-19

Recognizing the unprecedented challenges posed by COVID-19, particularly the violence against healthcare workers, the Government of India promulgated the Epidemic Diseases (Amendment) Ordinance on April 22, 2020, which was later passed as the Epidemic Diseases (Amendment) Act, 2020. This amendment introduced several crucial provisions to protect healthcare personnel serving during epidemics.

The amendment defined acts of violence to include harassment impacting living or working conditions of healthcare personnel, causing harm or injury, intimidation or danger to life, and obstruction in discharge of duties. It prescribed stringent punishment for violence against healthcare workers, with imprisonment ranging from three months to five years and fines between fifty thousand to two lakh rupees. For causing grievous hurt, the punishment extends from six months to seven years with fines ranging from one lakh to five lakh rupees.

The amendment also mandated payment of compensation to victims of violence, with compensation for property damage being twice the fair market value of the damaged property. These provisions were made cognizable and non-bailable, and investigations were required to be completed within thirty days with trials to be concluded within one year. The amendment created a presumption of guilt, placing the burden of proof on the accused to establish that they did not commit the violence.

The Disaster Management Act, 2005

The Disaster Management Act was enacted in 2005 following the devastating Indian Ocean tsunami of 2004 [4]. The Act defines disaster broadly to include catastrophes, mishaps, calamities or grave occurrences arising from natural or man-made causes resulting in substantial loss of life, human suffering, damage to property, or environmental degradation. This definition is sufficiently broad to encompass biological disasters such as epidemics and pandemics.

The Act established an institutional framework for disaster management with the National Disaster Management Authority at the apex, chaired by the Prime Minister. The NDMA is mandated to lay down policies, plans and guidelines for disaster management and to coordinate disaster response at the national level. State Disaster Management Authorities headed by Chief Ministers and District Disaster Management Authorities headed by District Collectors were also constituted to ensure coordinated action at state and district levels.

Section 6 of the Act empowers the NDMA to take measures for ensuring preparedness and mitigation of disasters, including measures for prevention of disasters or mitigation of its effects. The National Executive Committee, headed by the Union Home Secretary, assists the NDMA in implementing policies and coordinating response mechanisms across ministries and departments.

During the COVID-19 pandemic, the NDMA exercised powers under Section 6 to issue orders on March 24, 2020, directing all state governments and union territories to take measures for ensuring social distancing to prevent the spread of the virus [5]. This order formed the legal basis for the nationwide lockdown imposed across India. The Ministry of Home Affairs, being the nodal ministry for disaster management, issued detailed guidelines specifying activities that would be permitted and prohibited during the lockdown.

The Act grants extensive powers to the Central Government under Sections 35, 62 and 72 to issue directions to any authority or person for disaster management, with such directions having overriding effect over other laws. State Governments and State Disaster Management Authorities are bound to comply with directions issued by the Central Government and NDMA. The Act also provides for constitution of various funds including the National Disaster Response Fund, State Disaster Response Funds, and Mitigation Funds to ensure financial resources for disaster response and preparedness.

Constitutional Validity and Judicial Scrutiny During COVID-19

Lockdown and Fundamental Rights

The nationwide lockdown imposed under the Disaster Management Act raised significant constitutional questions regarding fundamental rights, particularly the right to freedom of movement under Article 19(1)(d) and the right to practice any profession or carry on any occupation under Article 19(1)(g). The lockdown effectively suspended these rights without a formal proclamation of emergency under Article 352 of the Constitution, which alone permits suspension of fundamental rights.

The constitutional validity of lockdown measures was examined in light of the restrictions permitted under Article 19(2) through (6), which allow reasonable restrictions on fundamental rights in the interests of sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. Public health and safety have been recognized as legitimate grounds for imposing restrictions on fundamental rights, provided such restrictions satisfy the test of reasonableness and proportionality.

The Supreme Court generally deferred to executive decisions during the pandemic, accepting that in times of national crisis, the right to life under Article 21 takes precedence over other fundamental rights. The Court acknowledged that preservation of life is paramount and that temporary restrictions on freedom of movement and occupation were necessary to prevent the spread of the virus and protect public health. However, the Court also intervened on several occasions to ensure that the government fulfilled its obligations to protect vulnerable populations and provide essential services.

Migrant Workers Crisis

One of the most significant humanitarian crises during the lockdown was the plight of migrant workers who found themselves stranded without employment, food, or shelter in cities far from their homes. The Supreme Court took suo motu cognizance of the migrant workers’ situation and heard several public interest litigations seeking relief for them.

In the suo motu case In Re: Migrant Workers [6], the Supreme Court examined whether the government had fulfilled its constitutional obligations to provide for the basic needs of migrant workers affected by the lockdown. The Court directed both Central and State Governments to provide food, shelter, and transportation to migrant workers and to ensure that they were not charged for rail or bus travel to their home states. The Court emphasized that the right to life includes the right to food, water, and shelter, and that the State cannot abdicate its responsibility to provide these essentials, particularly during a crisis.

However, the Court’s approach was criticized by some legal experts and civil society organizations for being overly deferential to the government and for not issuing more stringent directions to address the suffering of migrant workers. The Court initially accepted government submissions that adequate arrangements had been made, even though ground reports suggested widespread hunger and distress. It was only after persistent media coverage and continued advocacy that more concrete relief measures were ordered.

Healthcare Infrastructure and Right to Health

During the second wave of COVID-19 in April and May 2021, India faced an unprecedented crisis with severe shortages of oxygen, hospital beds, medicines, and vaccines. Several High Courts took suo motu cognizance of the healthcare crisis and issued directions to state governments to augment medical infrastructure and ensure availability of essential supplies.

The Supreme Court also intervened, with Justice D.Y. Chandrachud leading a bench that took cognizance of the oxygen crisis and issued detailed directions to the Union and State Governments [7]. The Court held that in a time of national crisis, the Supreme Court cannot remain a silent spectator and has a constitutional duty to protect fundamental rights under Part III of the Constitution. The Court raised concerns about oxygen allocation, availability of essential medicines, vaccine policy, and healthcare infrastructure, seeking regular updates from the government on measures being taken to address these issues.

The Court subjected the Central Government’s vaccine policy to constitutional scrutiny, questioning whether the policy of differential pricing for vaccines and requiring persons below forty-five years to obtain vaccines from the private market was consistent with the right to life and the principle of equality. The Court emphasized that universal vaccination was essential to protect public health and that the government had a constitutional obligation to ensure equitable access to vaccines for all citizens.

Need for Comprehensive Public Health Legislation in India

Limitations of Existing Framework

The COVID-19 pandemic exposed serious deficiencies in India’s legal framework for public health emergencies. The Epidemic Diseases Act, despite being the primary legislation for epidemic control, is woefully inadequate for addressing modern pandemics. The Act contains only four sections and provides no detailed framework for surveillance, containment, resource allocation, or protection of rights during epidemics. Its language is archaic and it functions primarily as an enabling statute granting wide discretionary powers to governments without sufficient checks or accountability mechanisms.

The Disaster Management Act, while more contemporary, was designed primarily for natural disasters such as earthquakes, floods, and cyclones rather than prolonged public health emergencies. The Act focuses on relief and response rather than prevention and surveillance. It does not adequately address health-specific issues such as disease surveillance, contact tracing, testing protocols, treatment guidelines, or protection of patient rights and medical data privacy.

Moreover, public health in India is governed by a patchwork of Central and State legislations enacted at different times for different purposes. These include various State Public Health Acts, the Drugs and Cosmetics Act, the Clinical Establishments Act, and numerous other statutes. This fragmentation creates coordination challenges and inconsistencies in implementation across states. Only eight states have dedicated public health laws, and many of these are outdated and ineffectively enforced.

Proposed Legislative Reforms

Recognizing these deficiencies, several attempts have been made to draft comprehensive public health legislation for India. The Central Government has proposed three model bills at different times: the Model Public Health Bill by the Central Bureau of Health Intelligence in 1987, the National Public Health Bill by the National Institute of Communicable Diseases in 2002, and the National Health Bill by the Ministry of Health and Family Welfare in 2009 [8].

The National Health Bill of 2009 was the most comprehensive effort, providing for protection and fulfillment of the right to health and wellbeing, health equity and justice, and a robust healthcare system. The Bill recognized seventy-one existing enactments on public health under its Schedule to establish coherence and compatibility in realization of health rights. It created a framework for public health services responsive to emergencies and established mechanisms for surveillance, prevention, and control of diseases.

However, none of these bills have been enacted into law. The primary obstacle has been the constitutional division of powers between the Union and States, with public health being primarily a State subject under Entry 6 of the State List in the Seventh Schedule. Any comprehensive national health legislation would require cooperation from State Governments or resort to the constitutional mechanism under Article 252, whereby two or more States may consent to Parliament legislating on State subjects.

A comprehensive public health law should address several critical areas currently not adequately covered. First, it should establish a robust disease surveillance system with mandatory reporting requirements, laboratory networks, and data sharing protocols. Second, it should provide clear guidelines for declaration and management of public health emergencies, including criteria for imposing restrictions, duration of emergency powers, and mechanisms for parliamentary oversight. Third, it should balance public health imperatives with protection of individual rights, including rights to privacy, informed consent, and freedom from discrimination. Fourth, it should establish standards for healthcare infrastructure, ensure equitable access to healthcare services, and provide mechanisms for enforcing the right to health. Fifth, it should create frameworks for international cooperation, border health controls, and compliance with International Health Regulations.

International Obligations and Best Practices

India is a party to several international instruments that impose obligations regarding public health and epidemic control. The International Health Regulations adopted by the World Health Organization in 2005 require member states to develop core capacities for disease surveillance, notification, and response. India is also a party to the International Covenant on Economic, Social and Cultural Rights, which recognizes the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

Article 12 of the Covenant requires states to take steps for prevention, treatment and control of epidemic diseases and creation of conditions that would assure medical service and medical attention to all in the event of sickness. India has committed to implementing these obligations, yet domestic legislation does not adequately reflect these commitments. A comprehensive public health law should incorporate these international standards and ensure that India’s domestic legal framework is aligned with its international obligations.

Conclusion

The COVID-19 pandemic has demonstrated that India’s legal framework for public health emergencies, while functional in providing emergency powers to governments, is fundamentally inadequate for addressing the complex challenges posed by modern pandemics. The reliance on a colonial-era statute supplemented by disaster management legislation reveals a critical gap in public health preparedness. The crisis has highlighted the urgent need for comprehensive public health legislation that establishes clear institutional frameworks, provides for disease surveillance and prevention, protects individual rights while enabling necessary public health measures, and ensures equitable access to healthcare as a fundamental right.

The pandemic has also underscored the importance of the judiciary in protecting constitutional rights during emergencies. The Supreme Court’s interventions, while sometimes limited in their immediate impact, have reaffirmed the State’s constitutional obligations to protect the right to life and health. Moving forward, India must learn from this experience and develop a robust legal framework that can prevent, prepare for, and respond to future public health emergencies while upholding the constitutional values of justice, equality, and human dignity.

The recognition of health as a fundamental right, supported by adequate legislative infrastructure and institutional mechanisms, is essential not merely as a response to pandemics but as a foundation for building a truly equitable and just healthcare system. As India continues to grapple with the long-term impacts of COVID-19, the imperative for comprehensive public health legislation has never been more urgent or more clear.

References

[1] Paschim Banga Khet Mazdoor Samity v. State of West Bengal, AIR 1996 SC 2426. Available at: https://indiankanoon.org/doc/1743022/ 

[2] Consumer Education and Research Centre v. Union of India, (1995) 3 SCC 42. Available at: https://indiankanoon.org/doc/117806/ 

[3] The Epidemic Diseases Act, 1897. India Code. Available at: https://www.indiacode.nic.in/bitstream/123456789/15942/1/epidemic_diseases_act,1897.pdf 

[4] The Disaster Management Act, 2005. National Disaster Management Authority. Available at: https://ndmindia.mha.gov.in/ndmi/images/The%20Disaster%20Management%20Act,%202005.pdf 

[5] National Disaster Management Authority Order dated March 24, 2020. Available at: https://ndma.gov.in/ 

[6] In Re: Migrant Workers, Suo Motu Writ Petition (Civil) No. 6/2020. Supreme Court Observer. Available at: https://www.scobserver.in/journal/covid-19-updates/ 

[7] In Re: Distribution of Essential Supplies and Services During Pandemic, Suo Motu Writ Petition (Civil) No. 3/2021. Citizens for Justice and Peace. Available at: https://cjp.org.in/covid19-ten-most-significant-decisions-of-the-supreme-court-of-india/ 

[8] National Health Systems Resource Centre. Legal Framework for Health. Available at: https://nhsrcindia.org/legal-framework-health 

[9] International Covenant on Economic, Social and Cultural Rights, 1966. United Nations Treaty Collection. Available at: https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-economic-social-and-cultural-rights