Legal deficiencies in Covid response: A case of Nepal and India

A policeman arrests a man using a pole with a clamp attached during the lockdown. (File photo/RSS)

Jivesh Jha

  • Read Time 7 min.

Due to Covid-19 lockdown, fundamental rights relating to life, liberty, food, housing and health of the citizens are in peril. The legal regime in Nepal struggles to provide a comprehensible legislative and regulatory framework for an effective public health crisis management system.

Recently, the government brought Ordinance for Covid-19 Crisis Management (2021) to strengthen the prevention and response mechanism. The Ordinance, with as many as 42 sections, confers ample powers on the government to adopt plans and policies to contain the coronavirus. Under Section 3(f), the government has the power to take any medical equipment or medicines produced from government or private enterprises under its control and distribute, sale or use them. In doing so, the law seeks to establish an ‘eminent domain’ of the state over private properties.

In addition to this, the government has the power to declare health emergency at the instance of widespread transmission of the virus. The ordinance confers power on the state to temporarily suspend the operation of flights and all other types of vehicular movements, suspend the people’s right to move, suspend movement across the borders or prohibit the operation of cinema halls, marketplaces, temples or any business or activities that see gathering of people. This arrangement legitimizes lockdown.

The Chief District Officers (CDOs) are made responsible for the implementation of the provisions contained under the Ordinance. It envisages the creation of Covid-19 Unified Central Hospital at Bir Hospital, Kathmandu. This dedicated hospital would be have authority to establish similar types of dedicated Unified Hospitals at provincial level. The hospital so established in provinces may be wholly maintained by the centre or the provinces. The law aims to establish an integrated treatment system to treat Covid-19 patients across the country so as to maintain the record of the number of patients and fatalities.

The latest law envisions a strong Directive Committee (DC) under the Chairmanship of Prime Minister. Section 12 details the functions of DC which include enactment and enforcement of plans and policies required to curb the rate of transmission of virus and do the needful for enhancing foreign aid and to establish coordination with provincial governments in fights against the pandemic. Interestingly, similar arrangement has been proposed at provincial level with Chief Minister as head and at district level under the leadership of CDO. The DC at the centre has the power to deploy Army to contain the virus.

Part-5 of the Ordinance provisions for up to Rs 5,00,000 fine, up to one year of imprisonment or both for an outlier who obstructs the government officials in implementation of the provisions of this ordinance.  Fine of Rs 3,00,000 or up to 6 months of jail or both has been provisioned for an outlier who wilfully disobeys the laws in force. The ordinance incorporates harsh penal provisions. A CDO is empowered to slap a fine of up to Rs 100,000 on any private citizen and a fine of Rs 500,000 on any institution found violating the orders passed under the ordinance. In addition to this, the security apparatuses are empowered to slap fine of Rs 100 for not wearing masks, Rs 200 for movement in the areas under lockdown, and Rs 2000 for bikers and Rs 5000 for other vehicles found roaming on the streets where prohibitory orders are issued.

The ordinance confers ample powers on the government to register healthcare professionals, manage health equipment, medicines, or to seek foreign cooperation among other things to defeat the pandemic. The law does not have any compensatory measures. The affected parties cannot claim compensation under current legal regime. Simply put, this law recognizes the rights of state but fails to guarantee the rights of citizens.

Nepal should adopt and enact a comprehensive pandemic code to augment medical research and to compensate the loss caused by the pandemic to the private enterprises as well as underprivileged people.

Moreover, the Ordinance fails to give effect to the orders of the Supreme Court. The apex court on May 31, 2020 had directed the government to provide essential medicines as well as masks, sanitizers and among other required materials free of cost to the needy people by virtue of a mandatory legal arrangement provisioned under Public Health Service Act (2018).

 Cases elsewhere

But countries facing similar crises elsewhere have tried to ensure public health and safety by law. For example, the UK government on March 25, 2020 adopted and enacted a special legislation, known as Coronavirus Act (2020) to break the chain of the transmission of the deadly virus. This Act features as many as 102 Sections and 29 Schedules. Interestingly, this legislation has a sunset clause which envisions that the law is enacted for a purpose and it would expire after a couple of years. As per Section 89, which is a sunset clause, the majority of the provisions will expire after two years. Nevertheless, this period may be extended by six months or shortened in accordance with Section 90.

The Act casts an obligation on the state to increase the manpower in health and social care sectors. Sections 11 to 13 of the Act provide indemnity against clinical negligence claims for healthcare professionals assisting in the response to the outbreak, who would not otherwise be so indemnified. Section 9 makes arrangement for the compensation to emergency volunteers who may have incurred loss of earnings or for travel and subsistence. Most importantly, the law guarantees compensation to every person who suffers loss or becomes victim of the current outbreak.

 In Canada, the health issues are dealt at provincial level in close coordination with the central government. The Public Health Agency Act (2006) led to the establishment of Public Health Agency of Canada which is responsible for the prevention of diseases and preparation and response to the public health crisis. Emergencies Act (1988) prescribes compensation for the persons who suffer loss, injury or damages as a result of anything done or purported to be done due to emergency proclamation (Section 48). According to this Act, in order to deal with health emergencies, the governments have to establish emergency shelters and hospitals; assess the damage to any work or undertakings and invest on the repair, replacement and restoration thereof.

In Australia, the National Health Security Act (2007) envisages process to deal with national health emergencies. The provisions, in the 2007 Act, are tailored to give effect to the World Health Organization (WHO) guidelines to fight against a disease.

In the US, the government invoked the Public Health Services Act (1944) and Defence Production Act (1950) to combat with coronavirus outbreak. The National Emergencies Act (1976) and the Stafford Act allow the president to declare a national emergency and allows the Federal Emergency Management Agency (FEMA) to access nearly $40 billion in disaster relief funding. Similarly, the surgeon general is also enabled by this act to use his/her judgment to decide on any measures necessary to prevent the spread of communicable diseases. “Additionally, the 10th Amendment under the U.S. Constitution also grants all power that is not specifically allocated to the federal government to the states, which then have the authority to take actions such as isolation and quarantine in their respective jurisdictions,” writes Dr Bipin Adhikari in Socio-legal Impacts of COVID-19: Comparative Critique of Laws in India and Nepal (2020).

India and Nepal

The epidemic law regime in India and Nepal fail to host welfare functions. Under Nepal’s current epidemic law, a person who wilfully violates lockdown would be punished with imprisonment of either description for a term which shall not be more than one month; or fine of Rs 100 or both. The Infectious Disease Act (1964) authorizes Chief District Officers (CDOs), who are answerable to Nepal’s Home Ministry, to implement the decisions taken in line with the Infectious Diseases Act. The CDOs are entitled to implement the Local Administration Act (1971) in case of urgencies or to impose prohibitory order.

India has invoked a 123-year-old colonial legislation to combat the outbreak of coronavirus. Constitution experts in India emphasize that it is imperative to amend or repeal the 1897 Epidemic Act, for the century-old-blunt law has glaring gaps. Section 3 of the Act provisions that any person found disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under Section 188 of the Indian Penal Code (IPC) (1860). Section 188 (disobeying public servant’s order) allows the state to inflict jail term of one month, or fine of up to Rs 200, or both. 

The epidemic laws in Nepal and India fail to define what infectious or contagious disease is. The legislations—in India and Nepal—confer blanket power on the state to curtail the outbreak of infection but it does not necessarily explain the duties of the government towards its vulnerable citizens. Nor do the laws explicitly recognize the rights of the citizens during an outbreak. The epidemic laws in India and Nepal don’t oblige the states to adopt scientific measures or invest in research required to curb the spread of an infection. Unlike in Canada, England and the US, the epidemic law regimes in India and Nepal nowhere prescribe welfare functions. The legislations do not necessarily oblige the governments to ensure arrangement of food or compensation or financial assistance to the daily wage labourers or poor and needy ones during crisis.

The epidemic law regimes in India and Nepal nowhere prescribe welfare functions. The legislations do not oblige the governments to ensure arrangement of food or compensation or financial assistance to the daily wage labourers.

India invoked National Disaster Management Act (2005) to declare Covid-19 outbreak as a national disaster. Section 3 provisions for the formation of National Disaster Management Authority which can adopt measures or direct the states to adopt measures to prevent the outbreak. Prime Minister Narendra Modi invoked this law to implement a uniform lockdown in India. There is also provision for the creation of State Disaster Response Fund where the Central government contributes 90 percent and the states contribute the remaining 10 percent. This fund is created in every state to fight against pandemic and disasters.

What should Nepal do?

Nepal is obliged by law to protect and promote the social wellbeing of the people. People at the bottom of the socio-economic pyramid, especially daily wage labourers, have been hit hard by the lockdown. The Supreme Court of Nepal and Parliament’s Legislative Management Committee have already directed the government to enact laws to battle the pandemic like situations. 

In our part of the world, as there is no any mechanism to bring workforce of informal sector under safety nets, a drop in their income due to unprecedented situations like pandemic, lockdown, shutdown, or disaster-like situations can drive them into poverty. Our democracy deserves to recognize the rights and concerns of the people engaged in informal sectors and others who suffer the loss due to health emergency or disaster.

Even the Ordinance has failed to recognize the rights of citizens.

Our democracy is failing to act as the guardian of the underprivileged people, violating the celebrated common law doctrine of Parens Patriae. In the UK, Coronavirus Act (2020) casts an obligation on the government to provide compensation to the victims of Covid-19, striking a right balance between the rights and duties of the state during the outbreak.

Nepal should adopt and enact a comprehensive pandemic code to augment medical research and compensate the loss caused by the pandemic to private enterprises as well as underprivileged people. Or it should allow the provinces and local governments to adopt such plans or policies as needed.

The author, former lecturer of Law at Kathmandu University School of Law, is currently a Judicial Officer at Dhanusha District Court. He has co-authored “Socio-legal impacts of COVID-19: Comparative critique of laws in India and Nepal.” [email protected]