The delivery and administration of health care largely rests with individual states in India as health care is a state subject. In view of the fact that World Health Organization on March 11, 2020, declared the coronavirus ("COVID-19") outbreak to be a pandemic, the Government of India, on March 11, 2020, decided that all States/UTs should be advised by the Ministry of Health and Family Welfare ("MoHFW") to invoke provisions of Section 2 of Epidemic Disease Act, 1897 ("ED Act")so that all advisories being issued from time to time by the MoHFW are enforceable.1
The ED Act provides for the better prevention of the spread of 'Dangerous Epidemic Diseases'. However, the term is not defined under the ED Act. Sections 2 and 2-A of the ED Act, in the event of an outbreak of any dangerous epidemic disease and the ordinary provisions of law for the time being in force are insufficient for the purpose, confer powers on the State and Central Governments, respectively, to take special measures and formulate regulations that are to be observed by the public. To that end, the Governments of Haryana, Karnataka, Himachal Pradesh and Odisha, with the objective of preventing the outbreak have invoked the provisions of the ED Act and issued specific regulations in respect of COVID-19.
- LEGISLATIVE FRAMEWORK
The Government of Haryana, on March 11, 2020, in exercise of its powers under the ED Act released 'The Haryana Epidemic Diseases, COVID-19 Regulations, 2020'2 ("Haryana Regulations"). The Haryana Regulations define the role of health officials, public and patients to mitigate the growing threat of COVID-19 in Haryana. The Governments of Karnataka and Himachal Pradesh have also released 'The Karnataka Epidemic Diseases, COVID-19 Regulations, 2020' ("Karnataka Regulations") and 'The Himachal Pradesh Epidemic Disease, COVID-19 Regulations, 2020' ("HP Regulations")3, respectively, on March 11, 2020. Similarly, the government of Odisha has released 'The Odisha COVID-19 Regulations, 2020' ("Odisha Regulations") on March 13, 2020.
2.1. The Haryana Regulations, the Karnataka Regulations and the Odisha Regulations
The Haryana Regulations, the Karnataka Regulations and the Odisha Regulations (collectively referred as 'Regulations') set out detailed guidelines to be followed by hospitals and testing laboratories. Some of the common aspects covered under the Regulations are as follows:
(i) The Regulations will be in effect for a period of one (1) year.
(ii) The Regulations (except the Odisha Regulations) define an 'Epidemic Disease' to include COVID-19.
(iii) The Regulations stipulate that no person, institute or organization should use any print or electronic media for spreading incorrect information regarding COVID-19 and treat the violation of this stipulation as a punishable offence thereunder.
(iv) The Regulations further grant the District Administration or other concerned authorities of the concerned district to implement containment measures to prevent spread of disease, inter alia, closure of schools, offices and ban public gatherings, bar entry and exit of the population from a containment area, isolate all suspected cases in hospitals, adopt any other measure as directed by concerned health department of the concerned state government, etc.
(v) The Regulations prescribe that all hospitals (government and private) should record the travel history of the person to any country area where COVID-19 has been reported or if the person has come in contact with a suspected or confirmed case of COVID-19. In case a person has such a history in last fourteen (14) days and is asymptomatic, then the person must be kept in home quarantine for a specified4 period from the date of exposure. Additionally, the Odisha Regulations mandates such persons to abide by the 'Home Quarantine Guidelines' issued by MoHFW. However, if the person is found to be symptomatic, then that person must be isolated in the hospital and tested for COVID-19 as per the protocol. Information of all such cases should be given to the designated authorities.5
(vi) The Regulations also provide that all person with a history of travel to a country or area from where COVID-19 has been reported in last fourteen (14) days, but who do not have any symptoms of cough, fever, difficulty in breathing should isolate themselves at home and cover their mouth and nose with a mask. Such persons must take precautions to avoid contact with any person including family members for fourteen (14) days from date of arrival from such area.
(vii) The Regulations also impose an obligation on any person with a travel history in the last fourteen (14) days to a country or area from where COVID-19 has been reported, to report to the nearest government hospital or call a toll-free helpline number so that necessary action may be taken.
(viii) The Regulations mandate all hospitals (government or private) to have flu/COVID-19 corners for screening of suspected cases of COVID-19.
(ix) The Regulations prescribe that no private laboratories have been authorized to undertake COVID-19 tests and the tests will be undertaken only at government designated labs.
(x) The Regulation penalises any person, institute or organization which/who has committed an offence under Section 188 of the Indian Penal Code, 1860.6
(xi) The Regulations further empower the Additional Chief Secretary of Health and the Deputy Commissioner of the District or other empowered officers to penalize any person or organization violating the Regulations or any order(s) issued by the respective Governments thereunder.
2.2. The HP Regulations
Unlike the Regulations, the HP Regulations have limited provisions. Some of the relevant aspects covered under the HP Regulations are as follows:
(i) While HP Regulations provide the effective date as March 11, 2020, it is silent on the term.
(ii) The HP Regulations also define an 'Epidemic Disease' to include COVID-19.
(iii) The HP Regulations grant powers to the concerned District Magistrate or Additional District Magistrate or Sub Divisional Magistrate, having jurisdiction and specially authorized, to initiate proceedings against any individual or owner of any premises under Section 1337 of the Code of Criminal Procedure, 1973, in case the individual or owner of any premises is suspected with COVID-19 and refuses to take appropriate measures for prevention or treatment.
(iv) Duties have been laid down for medial officers (both government and private) to notify the concerned authority about individuals who have travel history to COVID-19 affected countries and who are symptomatic and asymptomatic.
(v) The HP Regulations grant powers to 'Surveillance Personnel'8 to enter, inquire and undertake examination of individuals suspected with symptoms of COVID-19. The surveillance personnel also have the power to put individuals under home quarantine or direct/escort them to designated isolation facility.
(vi) The HP Regulations penalize any person, institute or organization which/who has committed an offence under Section 188 of the Indian Penal Code, 1860.
2.3. Precautionary measures by Commissioner, Bruhat Bangalore Mahanagara Palike
In order to prevent the spread of COVID-19, the Office Of The Commissioner, Bruhat Bangalore Mahanagara Palike ("BBMP")9, acting in pursuance of directions issued by the Commissioner, Health and Family Welfare has issued a circular dated March 13, 2020 ("Circular"). The Circular lists various actions that needs to be taken with effect from March 14, 2020 for a period of one (1) week till March 23, 2020. Actions/restrictions listed in the Circular are as follows:
(i) Places of mass gatherings like cinema theaters, malls, marriage halls, night-clubs etc. to be closed.
(ii) Schools, colleges, universities and coaching classes to be closed.
(iii) Swimming pools and multi-sports facilities to be closed.
(iv) Major sports events being held in stadiums like cricket, football, hockey will be cancelled.
(v) Conferences, workshops, marriages, jathras, etc. involving big gatherings will be cancelled.
(vi) All summer camps, meetings, workshops including international conferences should be cancelled.
(vii) Additional sanitation measures should be taken at all Government residential hostels.
(viii) Private hospitals to report suspected COVID-19 cases immediately to the health department.
(ix) IT/BT companies to be advised to allow their employees to work from home and avoid international travel.
- INDUSLAW VIEW
State Governments of Haryana, Karnataka Himachal Pradesh and Odisha are amongst the first few states to have issued specific circulars/notifications. Similarly, the State Governments of Delhi, Maharashtra and Gujarat, exercising their powers under the ED Act, have also issued their respective regulations.10 We expect other states to follow the suit and issue similar regulations. Additionally, various State governments have been attempting various containment measures viz. Government of Kerala has reported to have cancelled all public functions scheduled in March 2020, urged people to cancel weddings and other events that could invite mass gatherings, closed schools, colleges and movie theatres until March 31, 2020. Similar measures have also been adopted by other states including Telangana and Madhya Pradesh. The BBMP in Bangalore for instance, while not issuing a direction, has advised IT/BT companies to allow their employees to work from home for a week.
In addition to the State governments, the Supreme Court of India, considering the importance of safety measures, has notified that the apex court will have limited functioning, restricted to urgent matters only. It has also notified that no person except the lawyers who are going to act in the matter, i.e. either for argument or for making oral submissions or to assist along with one litigant only, shall be permitted in the court room.
In view of the forgoing, employers are strongly advised to ensure that they follow the advisories issued by the Central / State Governments (as may be relevant for an employer) to ensure that the correct information reach their employees. Also employers are obligated to follow and also ensure that their employees do not, deliberately or otherwise, engage in any conduct which may be construed as violating the provisions of the aforesaid regulations and/or advisories issued by the Central/State Governments (as may be relevant for an employer).
4 The Haryana Regulations and the Odisha Regulations prescribes a quarantine period of fourteen (14) days while the Karnataka Regulations prescribes a quarantine period of twenty eight (28) days.
5 Under the Karnataka regulations, the authority is office of district and family welfare of the concerned district, under the Haryana Regulations the authority is the Civil Surgeon of The District and under the Odisha Regulations the authority is State Integrated Disease Surveillance Unit and Collector of the District/Local Municipal Commissioner.
6 Section 188 penalises disobedience of an order duly promulgated by a public servant with imprisonment up to a term of one (1) month, or six (6) months if the disobedience causes danger to human life, health or safety, and/or fine, which may extend up to INR 1,000 (Indian Rupees One Thousand).
7 Section 133 of the Code of Criminal Procedure, 1973 empowers District Magistrate or Sub-Divisional Magistrate to take measures (as prescribed) to stop public nuisance.
8 HP Regulations define surveillance personnel as any personnel designated by the District Magistrate of the respective District to discharge such functions, duties and responsibilities as are considered necessary for the purpose of these regulations.
9 The BBMP is the administrative body responsible for civic amenities and infrastructural assets of the Greater Bangalore metropolitan area.
10 A detailed update on the said regulations would be covered in our next info-alert, scheduled for March 16, 2020
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