The report lists out measures for a more comprehensive law to prepare for crisis situations in a highly globalised world where future outbreaks of epidemics are a real possibility.

The 22nd Law Commission of India has suggested the decentralisation of powers between the Central and state governments during future pandemics like COVID-19.

The Commission, headed by Chairperson Justice Ritu Raj Awasthi, undertook a review of the current legal framework on epidemic diseases when the Epidemic Diseases (Amendment) Bill, 2023 was brought to its notice by the Ministry of Health and Family Welfare (MoH&FW).

“The MoH&FW not only made the said draft Bill available to the Commission but also sought the Commission's suggestions on the same,” its report says.

Apart from proposed amendments to the Bill, the Commission in its 94-page report lists out measures for a more comprehensive law to prepare for crisis situations in a highly globalised and interconnected world where “future outbreaks of epidemics are a real possibility”.

Lessons from COVID-19

The report says that the COVID-19 pandemic had unleashed an unprecedented challenge for the Indian health infrastructure. While the Central government was quick to respond to the emerging situation, certain limitations in the legal framework relating to healthcare came to light.

Imposition of lockdown was invoked under the Disaster Management Act, 2005 whereas Parliament amended the Epidemic Diseases Act, 1897 to address the challenges, particularly those faced by healthcare workers.

The Commission noted that the existing legislation “did not comprehensively address the concerns” when it came to containment.

Considering the challenges in contemporary times, the Commission believes that the management, control and prevention of epidemic diseases cannot be restricted to a century-old law.

Decentralisation of power

According to the Commission, the Epidemic Diseases Act confers wide powers on Central and state authorities. However, owing to the absence of a proper enforcement mechanism as per the nature and gravity of the epidemic disease, implementation of prevention and controlling measures get hampered, leading to an uncoordinated response to combat epidemic diseases.

As a result, the report recommends appropriate decentralisation and demarcation of powers in the new law among Central, state and local authorities to regulate future crises.

The Commission underlined that since public health and sanitation was a State subject under the Seventh Schedule of the Constitution, it was for the states to be the nodal authorities to manage public health crises and to implement preventive measures.

“To avoid conflict between the Centre and State, and to properly decentralise the implementation power, a dedicated Standard Operating Procedure (SOP) is required to respond against the situation of an epidemic,” it added.

The SOP outlines the role of the states when there is an “outbreak” before it turns into an epidemic. The state government, it has been suggested, should empower local authorities in case it is found that a particular area is under imminent threat of an outbreak.

However, in case a significant part of the country comes under the threat of an outbreak, then the Central government should have the power to frame regulations to manage the epidemic on the basis of the guidelines and directives provided in the epidemic plan.

Epidemic Plan

The Law Commission opined that the Central government should prepare an “epidemic plan” to dealing with all the outbreaks or epidemics or pandemics across the country.

Such a plan should be made in consultation with all the Central ministries such as MoH&FW and AYUSH, as well as state health ministries and departments, important public and private health institutions, technical and expert bodies and other stakeholders in the medical field.

The epidemic plan should contain a broad framework for imposing lockdown and for imposing restrictions on the movement of people and vehicles.

Other recommendations

One key suggestion to the government is to introduce definitions of various terminologies - invoked at the time of the recent pandemic - in the new law.

Here are some such terms the Commission has

The amended Act or new Epidemic Diseases Act must include a clear definition of an "epidemic".

For taking appropriate measures to contain and control epidemic diseases and to demarcate powers between the Centre and the states, the disease levels must be defined in terms of whether they are outbreaks, epidemics or pandemics.

Difference between “quarantine” and “isolation” should be clarified.

Mandatory inclusion of the definition of "clinical establishment" as mentioned in the Clinical Establishments (Registration and Regulation) Act, 2010, prescribing minimum standards before being declared fit to treat epidemic diseases.

"Physical distancing" must be defined in the parent Act.

Enhanced punishments

The Commission seeks “enhanced and stringent” punishments within the Epidemic Diseases Act to deter people from acting irresponsibly during an epidemic.

During the COVID-19 pandemic, Section 188 of the Indian Penal Code, providing punishment of imprisonment up to 6 months or fine up to ₹1,000 or with both, was invoked for violators.

However, under the corresponding new provision in the proposed Bharatiya Nyaya Sanhita (Section 221), the punishment has been enhanced to imprisonment for a term which may extend to 1 year or with fine which may extend to ₹5,000, or with both.

In the opinion of the Commission, however, such a punishment should be given statutory force within the Epidemic Diseases Act itself. The offence should be categorised under two heads - negligent contravention which will carry lesser punishment, and wilful contravention, which will entail a stricter punishment.

“Moreover, the Commission deems it fit that for subsequent or repeat contraventions, the punishments should be enhanced accordingly,” it added.