• Sonakshi Pandey[1]


The outburst and upsurge of a recherché pestilence caused by the proliferation of COVID- 19 virus scientifically named as ‘SARS- COV – 2’  has harshly exerted a fatalistic influence on the organized social, economic, political and cultural viability of all the inhabitants living around the world. The precipitate recrudescence of pervasive epidemic in all the countries somewhere manifests the paucity of attentiveness and alertness along with the scantiness of legal preparedness on the part of their respective governments.

A robust and efficacious legislative framework plays a vigorous role in the circumstances engendered by any deadly pandemic or epidemic. Following the same trajectory, Government of India also impetrated all the provincial governments to beseech the Epidemic Disease Act that was framed back in the year 1897 to resolve the catastrophic environment generated by the ebullition of corona virus. The union government also exercised its potentiality bestowed under the Disaster Management Act of 2005.

Since India got independence, Corona virus has been proved as one of the most lethal health exigencies facing by its citizens but already standing legislative policies to refrain this affliction have been substantiated completely amateurish. Thus, these acts certainly require statutory amendments so as to handle such widespread illness in the in subsequent years. The paper attempts to analyze the existing constitutional and legislative substructure concerning public health emergency and also examine the various lacunas in these statutory arrangements which require immediate modifications. The researcher then concludes the paper by insinuating several reforms for the emendation of contemporary laws pertaining to public health and also recommended the need for the dissemination and proclamation of an overarching legislation akin to public health in India.

Keywords:  COVID 19, Public Health, Indian Constitution, Supreme Court, British Colonial Rule, Epidemic Act 1897, Right to Health, Disaster Management Act 2005, Article 21, Finance Commission, self reliant India


Salus Populi Suprema Lex Esto” is a celebrated maxim propounded by the world renowned Roman philosopher Marcus Tullius Ciciero in his book ‘De Legibus’ which connotes that the health, welfare, good, salvation and felicity of the people shall be the supreme law. [2]The kismet of any country is truly incumbent on the well being and haleness of its citizens. Salubrious and invigorating health system plays a pivotal role in the accomplishments of objectives set for the unceasing growth of the nation. Healthiness and physical soundness is the foundation for achieving even a remote progress. Having said that, the health of individuals is largely determined by surrounding domain in which they sojourn and the atmosphere in which they breathe.

The life threatening Corona virus elementally first and the foremost unfurled from Hubie province of China, Wuhan city, at the end of the year 2019.[3] SARS- COV- 2 is verily a group of viruses that causes severe breathing and pulmonary problems in human beings. The explosion of novel corona virus cases in India necessitates the Indian government to refine and sharpen the public health program which is obliquely embodied under various national legislations and schemes. Though considering the ravaging situation prevailed in our country due to rise of corona virus cases with each passing day it seems that these health laws and policies could not stabilize the situation and eventually proved less productive.

The pandemic called attention to the desolate position of the health infrastructure at both the union and provincial level. Thus the outbreak impels the government to reevaluate the policies concerning public health laws and to devise the ways for the execution of these laws by all the states. The article significantly exemplifies the fact that the existing public health laws in India are antediluvian and outdated.  Since, these were promulgated back in the days by the pre historic government, now the only dubiety arises is whether the century old public health framework is still passable in present situation to serve the health care system of a gigantic country like India.

Therefore, the researcher in the present article emphasize on the exigency of a new laws regarding public health which would be adequately efficient to battle such hostilities created by Corona virus or any other pandemic. The other question arises is whether the efforts of Indian government proved successful in the process of administrating existing laws with entire ruggedness. The article exhibits a carping appraisal of laws concerning health and safety of humans as well as examines those grey areas which require urgent amelioration by Indian legislature and executive departments.

Indian legislature is persistently occupied with the framing of various policies.[4] The Epidemics Diseases Act of 1897 is a colonial law drafted by the pre historic government to serve the needs of people who survived that reign, however it is quite evident in the present scenario that this law desired to be replaced by any other enactment which can provide for umbrella jurisprudence in matter of public health.[5] 

The Epidemics Disease Act 1897 and The Disaster Management Act 2005 are the two principle legislative frameworks with reference to public health in India which bestows autarchic powers on the shoulders of the states to frame the rules and regulations for the haleness of its citizens but the present awful conditions reveal that public health programs need to undergo a substantial change.[6] The issue of health has got many aspects. Primarily it appeared to be just as a super technical but with the gradual exposure of environmental befouling it has now considered to be a socio technical issue. Since, the major superintend institutions of the world who works for accomplishing the goals of sustainable development all around, prefer to resolve the issue through legal ways therefore, currently it is addressed as a socio-techno-legal issue altogether.

To put it another way, it is apt to conclude that there is a interdependence between health and other social, legal and technical aspects of human lives and for the same reason, while adjudicating any matter related to public health, court also take into cogitation all the other facts in entirety so that ideal productiveness may be provided to any circumstantial approach.[7] In addition to the elevation of technological science, there is a further requirement of a data base system which is adequate to serve our health care system in upcoming years.[8]

While ventilating the different facets of health, it is suitable to thrash out both the organic living and in organic objects. Living beings like humans are completely hinge on the lifeless components including temperature, wind, and electricity and so on. The inanimate component encompasses atmosphere, hydrosphere and lithosphere. It is noteworthy that scientists are still irresolute about the origin of Corona virus and it is very challenging to mention through which sphere it really came into existence.

The living sphere comprises of plants, animals and human beings. Our mother nature, which at one point was utterly preserved at the present moment, needs a vital resuscitation because of the devastation caused by perilous elements. The lives of people all around the world have come to a complete halt right after the beginning of 202 due to the layout of the deadly virus emerged from the Wuhan city of china. The researcher later analyzes the public health legislations of India by diverging them into pre constitutional and post constitutional laws and also reflects on the necessity of the introduction of a new public health related Bill in India.

Public health care mechanism during colonial era

The fundamental rules of conduct and code of behavior for the preservation of our surrounding environment are found to be recorded in our immemorial venerated holy documents like Vedas, Upanishads, Manusmrities. As far as ancient Indian history is concerned, the Kautilya’s Arthashastra is regarded as the cornerstone which laid down the foundation principles for the conservation of environment during that ancient era. [9]Though, the most evident form of legislative framework concerning the health and environmental protection in India is found to be recorded in the reign of British colonial rule.[10]

The research discloses that British government and authorities were aware about these unforeseen situations generated by any epidemic or pandemic so they made an effort to shelter people from the health menaces. One of such endeavor taken by British government was the promulgation of Shore Nuisances (Bombay and Kobla) Act 1853, for encouraging the obliteration of inconveniences and annoyances below high water mark in the islands of Bombay and Kobla. The main objective of the law was the elimination of sludge and providing secured marine life. Under the act, collector was authorized to take suitable measures to achieve the ends of justice though; the offended party was allowed to present a petition in the court for the distress caused by any nuisance.[11]

 On the same line, another act was enacted titled as The Oriental Gas Company Act of 1857 which empowered the East India Company to unfasten soils or fracture any of the drains, ditches, sewers, channels or tunnels for the purpose of endowing coal gas in the presidency of Calcutta. However, act further provided that once objective of the act is achieved it would be the prime responsibility of the company to enclose and barricade the places which were earlier opened up by them.[12] It was required on the part of company to reinstate the uncovered drainages and sewers to protect the health general public from the perilous substances.

Act also renders provisions for the attraction of punishment in case of negligence or breach of duty of care on the part of company.[13] Thus the act incorporated the notion of strict liability, which makes the company liable in case of gas escape or if water gets contaminated by the leakage of gas.[14]

The specialness of these two acts lies in the fact that both of them embody the principle of strict liability in case of offences committed by company which would not require the proof of mens rea and secondly both acts encompass the damage neutral offences, which means that liability of company could be proved even if no loss is caused to any party.[15] The same principle of strict liability was propounded by the House of Lords in the famous case of Rylands v. Fletcher[16] which incorporates that anything which is likely to do mischief if escapes will be the whole culpability of the person who brought it on his land.

The only difference rests in the fact that under law of tort, in order to prove such liability, loss of damage is required to be proved by the aggrieved party but the above mentioned acts are excused from such limitation of evincing injury or damage and make the defendants more accountable. It is worthy of mention that the Oriental Gas Company Act 1857 was put into effect three years prior to the enactment of Indian Penal Code 1860 and ten years prior to the ruling given by House of Lords in Ryland v. Fletcher case. In the same fashion, Indian Penal code was drafted by Macaulay in the year 1860 which comprises of a handful of provisions concerning the state of health of people.

A whole section under chapter 14 is allocated to offences perturbing public health and safety. Section 269 and 270 requires special mentions which are relatable to the present situation created by pandemic. Section 269 condemns those negligent acts which are likely to escalate infection of diseases vicious to life of people. Such acts are punishable by six months imprisonment similarly section 270 declares punishment of two years for malignant actions likely to proliferate infections hazardous to life and safety of people. So the considerate attitude of British government concerning the health and safety of people is out rightly represented in both the acts.

 The first judgment under this provision was pronounced by the Madras High Court in the case of Queen Empress v. Krishnappa and Muruggappa[17] where a person was held liable under section 269 for spreading cholera by peripatetic his journey through a train. The reasoning behind the judgment says that:

Defendant was, to his understanding, infecting from cholera, did an act which he must have known was likely to spread the infection of a disease hazardous to life; and he did so ‘negligently,’ that is, neglecting the precautions which would have obviated risk to his fellow passengers in that he gave no notice of his condition to the Company’s servants, who would have either provided separate accommodation for him or have lawfully prevented him from travelling.”

From the anatomization of the above judgment it is concluded, that for incurring liability under section 269 and 270 three essential factors must be proved which includes that the defendant must be acquainted with the disease he is suffering from which proves the fact of his knowledge about the infection, secondly the defendant must be aware of the fact that through his actions he is likely to infect others from the disease he himself is suffering from and thirdly failure on his part to notify the fact of his illness to concerned authority which is his legal obligation so that, the authorities would take substantial measures for the protection of people from health crisis.

Section 271 penalizes the acts of insubordination regarding the quarantine rule set by the government but the mentioning of this section is inapplicable in the current situation because the application of the section is restricted to ports only. These provisions of Indian penal code along with the provisions defined under the Epidemics Act are now invoked by the police administration after the outbreak of infection caused by novel Corona virus in India but awkwardness arises when police applied these provisions in haste without discerning the essential ingredients which constitute the offences defined there under. The Famous ruling on this point was put forward by the High Court of Bombay in Tablighi Jamaat case[18] where a number of members of the Jamaat were charged under sections 269, 270 and 271 of IPC 1860 respectively. The high court in this case, specified that there are no evidences before the court which could prove that the members were already infected from the disease even before their arrival in India. Therefore, they do not attract the liabilities defined under above mentioned sections of IPC. Thus the FIR filed against them was ordered to be nullified.

Nearly, majority of the legislations that were framed during the British regime were brought up with the purpose of enlarging the expeditious industrialization which led to the emigration of people of village to cities and towns in search of income and occupation. There is another legislation promulgated by the colonial authorities called as The Bombay Village Sanitation Act 1889[19] which was explicitly made for ameliorating immaculateness and cleanliness in the presidency of Bombay. Act also stipulated for the formation of sanitary committees to achieve the objective defined therein.

In the year 1896, India went through a very a ghastly epidemic caused by Bubonic plague. The plague largely hit the presidency of Bombay and India was taken aback by the death of around 1900 workers in a single week.[20] These detrimental conditions precipitated by the bacterial infection impelled the British government to take acute measures for securing public health and one of them was the passage of Epidemics Act of 1897.

But the year of 1897 is also remembered for other two major incidents followed by the Epidemic Act. One of such incident was the prosecution of Bal Gangadhar Tilak under sedition law and the other was assassination of Collector Rand. All three events are completely apropos to the present situation created by Corona virus between the year 2020-2021. In the year 1897, outbreak of bubonic plague reached to the territories of Poona also, as a result of which a house to house inspection in probe of infected sufferers was ordered by the then collector RA Lamb of Poona. The search was conducted with the help of British soldiers with the sole purpose of securing the segregation and quarantine of infected persons by using incumbent modus operandi.

However the measures were adopted to ensure the well being and health of people around but the execution and enforcement of these measures went inordinately wrong which in turn exasperated the crowd in Poona and Maharashtra. The main grounds for people’s infuriation include the malicious and promiscuous demolition of people’s property in the course of searches; forcible shifting of decontaminated and healthy people into the isolation camps and most devastating of them was the badly behaved attitude of British officers towards Indian women. They started taking the undue advantage of situation by mishandling the native females.

The residents of Poona and Maharashtra had no other option but to open a full-fledged front against the oppression of British administration. Bal Gangadhar Tilak a true nationalist who commonly referred as the Father of the Indian Unrest was the chief editor of newspapers like ‘Kesari’ and ‘Mahratta’. He was charged under section 124A of IPC for communicating his thoughts against the British atrocities through his newspaper in the year 1897.[21] He was sentenced to imprisonment for 18 months.

 He wrote that “Plague is more merciful to us than its human prototypes now reining the city. The tyranny of the Plague Committee and its chosen instruments is yet too brutal to allow respectable people to breathe at ease.”[22] His conviction led the dismay among general public which consequently led the assassination of the collector RA Lamb and his lieutenant. These events are worth mentioning because, even after the passing of several decades since, the India got its independence from colonial rule they are seem to be suited to the present situation perfectly. Today, also to deal with the horrifying circumstances created by Covid 19, our government is bound to take recourse of Epidemics Act 1897 and the provisions provided under IPC 1860.

State governments are struggling while tackling the pandemic aftereffects. Some of the cities in India are witnessing the great displeasure from public including the criticism and assault on health personnel, doctors and female nurses.[23] In this scenario, the digital media plays highly dominant role by disseminating the awareness among the general public concerning health crisis caused by viral infection. To handle the despondency unveiled by some citizens, Epidemic Diseases Amendment ordinance 2020 was promulgated by the central government which penalizes the insubordinate actions of law breakers in India.[24]

In addition to the Epidemic Diseases Act, another act was enacted by the pre constitutional government under the title Government of India Act 1919 which incorporated provisions pertaining to public health and safety.[25] Under the act, Public health was placed under state list whereas infectious and contagious diseases were laid down under the union list of part 11. Provisions with respect to public and maintenance of fitness were also embodied down under article 4 of the Nehru Report presented by him in 1928.[26] Nehru also perceived the public health as one of the valued fundamental right of Indian citizens. And same provision concerning public health and sanitation again found its incorporation under the Government of India Act 1935.[27]

 Indian Constitution and Public Health

During the debates among the members of constituent assembly, H.V. Kamath on the basis of   advice given by the expert committee on financial provisions,[28] argued that public health must be placed under concurrent list instead of being a state entry which also justifies the fact that funds and financial resources allocated to states by central government would not be commensurable to maintain the public health, safety and medical facilities of its citizens.[29] Similarly another member Shri Brijeshwar Prasad also wanted the public health to be positioned under union list. However the decisions of the members of constituent assembly mostly trailed around the Acts of 1919 and 1935 and public health remained under the provincial list.

The competency of parliament and state legislatures to enact laws on the various entries prescribed under the union list and state list respectively is bestowed under article 246 of Indian constitution. Entry 28 of union list under seventh schedule of constitution embraces the provision related to port quarantine, seamen’s and marine hospitals. Entry 6 of state list provides for public health, sanitation, medicals and dispensaries. On the similar context, entry 23 of concurrent list speaks for social security and social insurance. A commission constituted in the year 2019 under the 15th financial commission of India proposed the repositioning of public heath from state list to concurrent list[30].

The exhortation for transposing the entry pertaining to public health from state to concurrent list shall highlight the common interest of both union and provincial governments and also their respective legislatures shall be empowered to enact the policies and regulations for the perpetuating the status of health and safety in India. Since the right to have a good health has been secured by the Supreme Court as a fundamental right under article 21 in many of its formidable judgments now, it is the government’s turn to capitalize this right into reality. 

Some representatives of government believe that the repositioning of public health subject from state to concurrent list will be a step towards the strong central structure which will consequently result into the enfeebling of provincial powers. But after analyzing the present situation and encountering the seventy years of self government it is crystal clear that state governments are impuissant to serve the its citizens the ultimate goal of healthy and safe life due to scarcity of resources and shortage of funds. Thus the rearrangement of certain entries would rather succor to concoct a harmonization between the two levels of government. 

Furthermore, central government can also take an initiative by adding a provision under part III of constitution which would declare ‘the right to health’ as an explicit fundamental right of citizens ,  like they have already done in the case of ‘right to education’ by embodying article 21A through 86th amendment of constitution in the year 2000. The right of the Indian citizens of leading a healthy life is also enshrined under various Directive principles under part IV of constitution including article 39, 41, 42, 43 and 47. Public health has also been set out as an exception under article 25 and 26.

The Disaster Management Act of 2005 was enacted by the parliament by invoking its powers provided under entry 23 of concurrent list which speaks for social security and social insurance. The rationale behind the framing of legislation under concurrent list lies in the fact that it bestows the powers on the states to frame their own laws on disaster management. However the high powered committee on issue of disaster management proposed in its report that since the word disaster specifically is not mentioned in any of the three lists so it should be considered as a union subject.

Moreover article 253 vouchsafes the ability to parliament to frame laws on the international treaties and conferences and by making use of that provision,  parliament took measures suggested by the World Conference on Natural Disasters held in the Yokohama city of Japan in 1994.[31] The most relatable entry which is perfectly suitable in the present havoc is placed under 29th position of concurrent list which articulates for the preclusion and impediment of outspreading of infectious and transmittable diseases from one state to another. The newly promulgated ordinance titled as The Epidemic Diseases Amendment Ordinance Act 2020, has been passed by maneuvering the entry 29 of concurrent list. Schedule 11 of Indian constitution which was added through 73rd amendment of 1992 consists of total number of 29 subjects defining the powers, authorities and duties of Panchayats which emerged as the third level of government in India. Subject 23 of this schedule states the duty of Panchayats concerning the health and sanitation of people comprising of facilities of hospitals, primary care centers and dispensaries.[32]

Similar provisions are incorporated under subject 6 and article 243W of 12th schedule which was added through 74rth amendment act of 1992. Under 12th schedules powers and authorities to maintain health and sanitation are bestowed on Municipalities.[33] Apart from these provisions of constitution, a committee of a high level group on Public health and sanitation constituted under the 15th Finance Commission come up with two major submissions:

  1. It advised the government to proclaim the Right to health as a fundamental right on the auspicious occasion of 75th Independence Day in 2022.
  2. Secondly it also suggested for the repositioning of entry pertaining to public health from state to concurrent list to promote the notion of cooperative federalism between central and state governments.[34]

In Security Association of India v. Union of India,[35] a case decided by Bombay High Court on 13 December 2016, it was held by the court that the doctrine of constructive harmonization encapsulated in our constitution must be conceived to assuage the permissible diverseness of regional experimentation with the want of nationwide consonances. If this equilibrium between centre and states get disturbed, it shall be fatal to the nation of cooperative federalism.

Indian Judiciary on Right to Health

It is remarkable to mention that on 20th July 2018 a bill was introduced in the Rajya Sabha titled as, The Constitution (Amendment) Bill, 2018 with the purpose of bringing an amendment to the Constitution through interpolation of new article 21B under part III.. The newly inserted article would declare the right to health as a fundamental right of Indian citizens.[36] The amendment would make it mandatory for the state to render procedure for safeguarding the health of all Indian citizens which also encompasses the prohibition and elimination of diseases and to provide its citizens gratuitous or low cost medical facilities in hospitals. It would certainly come out as a plausible action of the government for achieving the goal of securing the health and safety of its citizens.

The bill however doesn’t exhibit the facts of financial statements. The legislators argued that the prophecy pertaining to the financial expenditure for serving the objective mentioned in the bill is not feasible at the earliest stage and the verisimilitude of the bill rests in the fact that a fundamental right of any citizen can never be denied to him by giving the reason of insufficiency of financial resources. However it is a grim reality that maintaining public health of people indeed calls for immense spending and disbursement by the government. Thus, without working out on the economic accountability, it is not desirable for the government to move along with the bill.

During first month of the outbreak of novel Corona virus, public interest litigation was filed by the petitioner named Shashank Deo Sudhi, who through his petition questioned the order of government pertaining to the price fixed for the testing of corona virus in Private labs.[37] He pleaded that being one of the largest populated country of the world, a large section of people in India belong to below the poverty line and an unreasonable price of Rs.4500 fixed by the government for mere testing of corona virus in private labs would only lead to the multiplication of corona cases all around the country as it is quite impossible for economically weaker class to step further for testing of virus at such extortionate cost. On 13th April 2020, Supreme Court while entertaining the petition held that the advantage of Covid 19 free testing would be guaranteed to economically weaker sections only.

However all those people who have registered themselves under the Ayush Bharat Jan Arogya or any other government scheme would also be eligible for the free testing of COVID 19. Howbeit, Right to health has already been announced as a fundamental right under article 21 of constitution by Supreme Court its formidable decision of Parmanand Katara v. Union of India[38] back in the year 1989, where the court made it obligatory for both private and public hospitals to provide instant treatment and medical care to the sufferers of road accidents.

There is another judgment of Supreme Court, where a comprehensible acknowledgment was given to the subject of public health. An NGO by the name of Consumer Education and Research Centre working in the direction of consumer rights, by invoking article 32 of constitution filed a petition in the court with respect to the safeguarding and preservation of heath of labor class against the vulnerability caused by the hazardous radiations and emissions discharged by industries. [39]The court while reading article 21 along with 39(c), 41 and 43 pronounced that it is the moral, legal and constitutional obligation on the part of state and employers to provide prolonged medical aid and care to its workers. Though the directions given by court in this ruling was restricted to those workers only who are indulged in the hazardous employments.

Another achievement in this direction was Paschim Banga Khet Mazdoor Samiti v. State of West Bengal,[40] pronounced by apex court in 1996 where the contention involved was whether, refusal of urgent medical treatment to a victim suffering from serious injuries at any hospital or dispensary administered by state government would amount to the breach of his fundamental right to life and health under article 21 of constitution. In this case, a passenger suffered serious head injuries on account of his falling down from a train. He was immediately taken to a government hospital but unfortunately couldn’t get the treatment due to lack of medical facilities. Lastly he ended up in a private hospital where he got medicated on his own personal expense. Court then gave guidelines to the state for ensuring the well being of Indian citizens including the establishment of several primary healthcare centers and nursing homes. Court also granted an amount of 2500Rs. as compensation to the petitioner in the said case. The facts of this case are very relevant to the present situation caused by the infectious corona virus where many patients have been found to be hastening from one to other hospitals in search of ventilators, beds, injections and oxygen.[41]

Especially in this era of second wave of Corona virus, India has already witnessed thousands of death either due to the denial of admissions by the hospitals or due to the adequate lack of oxygen and ventilator beds. Many of these patients have been found to be died on roads or outside the hospitals. These catastrophic states of affair existing all around the country manifest the inability and clumsiness of both levels of government in India.

It is worth noting fact that apart from India, there are other countries also facing the same muddle. USA also dealt with the same situation where citizens were facing denial from the hospital authorities even in case of urgent medical aid. To resolve the issue, they came out with the Consolidated Omnibus Budget Reconciliation Act in the year 1986 to safeguard people from the absurd practice of hospitals pertaining to intractable discarding patients in need of immediate care and attention of medical aid.[42]

Another landmark pronouncement of court on public health is State of Punjab v. Mohinder Singh Chawla[43] , where court discussed the fiscal aspect of the right to health and ruled out that if  any scenario requires the transfer of  government employee  from a government to private hospital on the reference made by doctors due to the lack of sufficient facilities than in that case all the expenses borne by the patient in course of his treatment in private hospital  protected by his medical insurance shall be reimbursed to him by government. During the wake of COVID 19 cases, citizens of India witnessed the two facets of the fundamental right to life defined under article 21. The citizens who have registered themselves under the Ayushman Bharat Yojna or other government schemes are getting accommodated with freebie COVID testing and rests are required to pay cost of 4500Rs. just for one COVID 19 test which was in the later stage lowered down by various state governments.

For securing the health of prisoners from the risk of the spread of COVID 19 virus, the apex court on 23rd March 2020, passed an order, where the States were asked to form a panel including the respective State Legal Services Authority along with the Law Secretary so as to determine all those under trial prisoners who could be temporarily released so as to avoid the effect of pandemic as much as possible. Court also asked the respective state governments to set up various preventive measures in the prisons itself to avoid the spread of infection among prisoners in India.[44]

Later on in the case of National Forum on Prison Reforms vs. Government of NCT of Delhi and others[45], which arose out of an SLP filed in the Supreme Court against the order of High Court pronounced on 20.10.2020? In this case court stayed the orders passed by the High Court of Delhi which directed the 2,674 under trial prisoners to surrender to their respective prison authorities, who were released earlier by the order of court due to the outbreak of COVID 19 Pandemic. Court after giving a thought on the overcrowding of prisons in the national capital, passed the order for the further extension of the bail of the under trials imprisoned in the prisons of Delhi.

Following the same direction, the apex court in Re contagion of corona virus in children Protection home[46], Court pulled the strings of central government by guiding it concerning the suitable medical ministrations of patients and children placed under protection homes. The calamities and catastrophes witnessed by India in the past years have been entirely different in comparison to the pandemic precipitated by the flaring up of contagious novel Corona virus. And as the name suggests, Indian government also requires embracing some novel measures in order to withstand this deadly pandemic in the near future and for attaining this objective, a new health policy is desired to be framed by legislature as soon as the ramifications caused by virus get over.


The fundamental idea of health, happiness security and welfare of any country, predominantly indwells into, the determination and dedication of people living therein by respecting the government mandates as well as by allocating a generous acceptance to the unmitigated realization of the laws enacted by the legislature and administered by the executive branch of government. Withstanding the circumstances effectuated by any pernicious pandemic, epidemics or any other misfortune require a systematic and ideological approach of government and coordinated endeavors of country’s administration, judicial system and people of the polity. The disastrous repercussions generated by the outburst of novel corona virus has been a life altering experience for all and  it made us realize the significance of a felicitous policy for the  up gradation of health regime in India. Health and wellbeing of people is the prerequisite for the foundation of a welfare state. But the acerbity lies in the fact that the subject of public health neither found the explicit protection under the umbrella of Human rights nor it is embodied under the fundamental rights preserved under part III of Indian constitution and this count as a major reasoning behind the existence of incapacitated and debilitated heath care system in our country. Thus it is the perfect time for the parliament of India to enforce the Constitution Amendment Bill of 2018 by incorporating Article 21B under the heading of fundamental rights. Strengthening the health care mechanism is not a puny and easy task but it requires back breaking strength as it is always said that revolution comes in a day but reforms take their own time to become victorious. The task of achieving the goal of public health is never unworkable and it should be placed on the top of the priority list of the government.

[1] BA.LL.B, LL.M, NLIU Bhopal.

[2]  David Dyzenhaus, “The Safety Of The People Is The Supreme Law” , review Of Crisis And Constitutionalism: Roman Political Though From The Fall Of The To The Age Of Revolution, By Bejamin Straumann, (Oxford University Press, NewYork 2016).

[3] Dominic Dwyer, “WHO Report on COVID-19 Origins Is Out. Here Is What Happens Next”, The Wire, March 21, 2021, accessed 15 May 2021, available at, <https://science.thewire.in/health/what-we-need-to-do-next-for-a-complete-picture-of-the-origins-of-the-coronavirus > (last visited on 15 May 2021).

[4] Government of India, “National Heath Policy 2017”, Ministry of Health and family welfare, <,https://www.nhp.gov.in/nhpfiles/national_health_policy_2017.pdf> (last visited  on May 20,2021).

[5] The Epidemic Diseases Act 1897,

  <https://legislative.gov.in/sites/default/files/A1897-03.pdf>(  last visited on May  18,2021)

[6] The Disaster Management Act 2005, <https://cdn.s3waas.gov.in/s365658fde58ab3c2b6e5132a39fae7cb9/uploads/2018/04/2018041720.pdf> (last visited on   May22, 2021).

[7] K T Narayan, Safety Health And Environment Book , (MC Graw Hill publications, 14th   ed. January 2015).

[8] Jai Prakash Narain, “Public Health Challenges In India : Seizing The Opportunities”, 41(2), An Indian Journal Of Community Medicine,  85-88, (2016),  <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4799645/> (last visited on16 May 2021).

[9] P Leelakrishnan, Environmental Law In India, (Lexis Nexis, 3rd ed., 2010).

[10] S.C. Shastri, Environmental Law, (Eastern Book Company, 6th ed. 2018).

[11] The Shore Nuisances (Bombay and Kolaba) Act 1853, <https://lj.maharashtra.gov.in/Site/Upload/Acts/(62)%20The%20Shore%20Nuisances%20(Bombay%20and%20Kolaba)%20Act%20(H%204178).pdf>(last visited on   May 17,2021).

[12] The Oriental Gas Company Act,.1857 <https://indiankanoon.org/doc/333275/>(last visited on accessed  May 19 2021).

[13] ibid s. 21.

[14] ibid s. 15.

[15] Ramdas and Ors. v. K.M. Sen, Manager, Oriental Gas, AIR 1955 Cal. 517.

[16] John Ryland v. Thomas Fletcher (1868), UKHL 1.

[17]  (1883) ILR 7 Mad 276 .

[18] Konan Kodio Ganstone and Others.v. State of Maharashtra, (2020)  SCC Bom. 869.

[19] The Bombay Village Sanitation Act 1889, < http://eqjcourts.gov.in/images/Act_Laws/BombayVSA.pdf> (last visited on May 17, 2021).

[20] Sarkar, Natasha, ”Plague In Bombay: Response Of Britain’s Indian Subjects To Colonial Intervention.,  62”, Proceedings of the Indian History Congress,442–449, (2001),<.www.jstor.org/stable/44155787> (last visited on   May 18 2021).

[21]  Queen Empress v. Balgangadhar Tilak and Keshav Mahadev Bal, 22, Indian Law Reports, 1897, 113, <,https://bombayhighcourt.nic.in/libweb/historicalcases/cases/ILR1898%2822%29BOM112.pdf> ( last visited on   May 18, 2021).

[22] Sumanta Banerjee,  “A New Class Of Anti Nationals – Victims Of Covid 19 Paranoia”, Covid Response Watch, Counter Current Organizations, April 6, 2020, <https://countercurrents.org/2020/04/a-new-class-of-anti-nationals-victims-of-covid-19-paranoia> (last visited on  May 19, 2021).

[23] Ashmita Banerjee & Mukul Singh, “Violence Against Doctors, An Alarming Issue In Indian Society”, 4(2), International Journal Of Law, Management And Humanities, 2021,<//www.ijlmh.com/paper/violence-against-doctors-an-alarming-issue-in-the-society/>(last visited on   May 18,2021https).

[24] The Epidemic Diseases (Amendment) Ordinance, 2020, <https://egazette.nic.in/WriteReadData/2020/219108.pdf.>(last visited on  May 18,2021).

[25]AbhaTrivedi, “The Government of India Act, 1919 Montagu-Chelmsford Reforms, Department Of Western History”, University  of Lucknow,<.https://www.lkouniv.ac.in/site/writereaddata/siteContent/202004132156500043Abha_Trivedi_Government_of_India_Act_1919.pdf> ( last visited on  May 19,2021).

[26] The Nehru Report and Round Table Conference, <, http://dcac.du.ac.in/documents/E Resource/2020/Metrial/17AakanshaNatani2.pdf>( last visited on  May 18, 2021).

[27]  The Government of India Act 1935, Entry 14, Provincial Legislative List, Seventh Schedule, <https://www.legislation.gov.uk/ukpga/1935/2/pdfs/ukpga_19350002_en.pdf> (last visited on 18 May 2021).

[28]  VII Constituent Assembly Debates, (Lok Sabha, 5 December, 1947),<https://eparlib.nic.in/bitstream/123456789/762996/1/cad_04-11-1948.pdf.>(last visited on 20 May 2021).

[29]  IX, Constituent Assembly Of India Debates (Proceedings) , (Lok Sabha, 2 September , 1949), <http://loksabhaph.nic.in/writereaddata/cadebatefiles/C02091949.pdf.> (last visited on 20 May 20201).

[30]Fifteenth Finance Commission of India, A Report Of High Level Group On Health Sector, 2019 <https://fincomindia.nic.in/writereaddata/html_en_files/fincom15/StudyReports/High%20Level%20group%20of%20Health%20Sector.pdf.>(last visited on  20 May 2021).

[31] United Nations, Report of the World Conference on Natural disaster Reduction, Yokohama Japan, ( May  22-27,1994),<. https://www.preventionweb.net/files/10996_N9437604.pdf>( last visited on May 22, 2021).

[32] The Constitution  (Seventy-Third Amendment) Act, 1992,

<https://www.education.gov.in/sites/upload_files/mhrd/files/upload_document/73amend.pdf> (last visited on   May 18, 2021).

[33] The Constitution (Seventy-Fourth Amendment) Act, 1992,

<https://www.education.gov.in/sites/upload_files/mhrd/files/upload_document/74amend.pdf>(last visited on   May 18, 2021).

[34] Nishant Sirohi, “Declaring The Right To Health A Fundamental Right”, Health Express, Observer Research Foundation,  July 14, 2020 ,<://www.orfonline.org/expert-speak/declaring-the-right-to-health-a-fundamental-right> (last visited on May 21, 2021)

[35] Writ Petition No.7640 (2015).

[36] The Constitution (Amendment) Bill, 2018, Bill No.IV Of 2018<.>(last visited on accessed  May 20,2021).

[37] Shashank Deo Sudhi v. Union of India, (2020) SCC online (SC) 358.

[38] (1989) 4 SCC 286.

[39] AIR 1995 SC 922.

[40] (1996) 4  SCC 37.

[41] Shikha Salaria, “Covid-19: No Bed In Four Noida Hospitals, 33-Year-Old Dies In Car”, The Times of India, May 1,2021,< https://timesofindia.indiatimes.com/city/noida/no-bed-in-4-noida-hospitals-33-year-old-dies-in-car/articleshow/82337348.cms>(last visited on   May 20,20201).

[42] COBRA Continuation Coverage, Employee Benefits Security Administration ,United States Department of Labor, November 2016,<.https://www.dol.gov/sites/dolgov/files/ebsa/about-ebsa/our-activities/resource-center/fact-sheets/cobra.pdf >(last visited on  May 21, 2021).

[43] AIR 1997 SC 1225.

[44] Nalini Sharma, “Releasing Under Trials On Bail”, The Republic World, March 29, 2020,  <https://www.republicworld.com/india-news/law-and-order/covid19-supreme-court-asks-states-to-consider-releasing-undertrials .html >(last visited on accessed May 20,2021).

[45]  Special Leave Petition (Civil), Dairy no. 23367/2020, <https://www.livelaw.in/pdf_upload/pdf_upload 383771.pdf> ( last visited on 21 May 2021).

[46] (2020)  SCC online (SC) 354 .