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  • Kavya Jha & Palak Kapoor

The Legislative Framework to Combat Pandemics: An Analysis of India and China


The origin of the novel COVID-19 pandemic has been linked to the unhygienic but legal wet markets in Wuhan, China. The Chinese authorities are being held responsible for the harm caused by the spread of the pandemic and the failure of the country to learn from the mistakes it made during the 2002 SARS epidemic. However, despite being the hotspot for the infectious disease in early 2020, the cases have significantly reduced in China as of April, 2020. The same has been attributed to the stringent measures taken by the Chinese authorities to curb the situation. India now faces a similar situation, with positive cases rapidly increasing in the country and the Government having declared a 21-day lockdown, starting from 25th March 2020. The question arises, does India have sufficient legal mechanisms to curb the situation? And if not, is China a good example to follow?

The Chinese Law that Aided the Spread of the Pandemic

The 2002 SARS outbreak claimed around 800 lives,[i] and now the novel coronavirus has already claimed 119,666 as of 14 April, 2020.[ii] History has repeated itself to a certain extent, as a virus has transferred from a wild animal to humans in China and now threatens the lives of so many. It is imperative to analyse what led to the outbreak of this virus and how it can be linked to a loosely drafted legislation.

The problem of wildlife consumption is rooted culturally in China, as consumption of these animals is considered not only good for health, but also an important “status symbol.”[iii] Furthermore, the State itself emphasises the importance of keeping the Chinese “wisdom” of traditional medicine alive.[iv] Even though the wildlife trade in China is worth $73 billion as of 2017 and is a source of employment for over one million people[v], the current pandemic compelled the government to impose a ban on wildlife consumption and trade on “terrestrial wildlife of important ecological, scientific and social value.”

The Wildlife Protection Act of China, dating back to 1988, legalises the consumption and farming of wildlife.[vi] The term “wildlife” has been inadequately defined in the Act and has also been termed as “natural resource” to be used for human benefit.[vii] The Standing Committee of the National People’s Congress has announced that it will make revisions to the law. However, it is concerning that a comprehensive list of banned animals has still not been released[viii] and the ban was only temporary and has been lifted. [ix] Moreover, the country is facing backlash from the international community based on the “transboundary harm” it has caused due to its (in)action in preventing the spread of COVID-19[x].

The law in China has a system of providing “special markings” which are in the nature of a legal permit, for the utilisation of species under special state protection[xi], for trade and consumption. This encourages people to continue with wildlife farming. These provisions do not create a deterrence in the consumption of endangered species and encourage the people to engage in their trade, which is ultimately hazardous for the environment. Further, the law permits the use of wildlife for the creation of Chinese traditional medicine.[xii] The same should be amended to completely prohibit such use. The State only prohibits the illegal purchase of wildlife for consumption, which should ideally be extended to all kinds of purchase in order to ensure the prevention of another pandemic. [xiii] The Act is careful in eliminating all illegal trade or foodstuffs in wildlife,[xiv] but at the same time has not been able to implement sufficient measures to ensure the maintenance of cleanliness and hygiene in places where these animals are bred or are sold such as the wet market in Wuhan. There is also an absence of strict punitive measures in the Act, that penalise the illegal trade of wildlife.[xv]

The law should be revised using the precautionary principle as has been given in the Rio Declaration 1992, CITES and the Convention on Biological Diversity.[xvi] The principle has become intrinsic to international environmental policy. It dictates that when there are “threats of serious or irreversible damage”, lack of certain scientific proof cannot be used to delay cost-effective measures to prevent environmental damage.[xvii] This is important for sustainable development. There is a strong demand for a permanent ban in wildlife trade and closure of wet markets in China by international organisations as well as Chinese residents. [xviii] It is pertinent to note that the permit to use pangolins for medicine by the Chinese Government , encouraged the people to trade the animal for its meat illegally, and this animal is likely to be the source that transferred the COVID-19 to humans.[xix]  However, a permanent ban has the possibility of disrupting the Chinese market and the livelihood of millions.

It is agreed that to immediately stop all wildlife trade is unrealistic as the use of wild animals in medicines, as mentioned above, is deep rooted in Chinese culture and a cultural overhaul cannot be brought about immediately. It is ironic that to cure COVID-19, the Chinese have suggested the use of bear-bile[xx]. Further, traders are already hoping to get back into the market.[xxi]  A systematic approach to stop the practice is advisable.[xxii]

The Chinese Laws that Curbed the Spread

It was on 31 December, 2019 that China first reported to the World Health Organization a cluster of cases of pneumonia in Wuhan.[xxiii] On 23 January, 2020, the lockdown in China began. Initially, Wuhan, Xiantao and Chibi in Hubei province were placed under lockdown.[xxiv] Stringent measures, such as massive lockdowns, building hospitals within days,[xxv] electronic surveillance using online payment apps, drones, facial recognition [xxvi] etc, were taken. These measures, which have been described as “perhaps the most ambitious, agile and aggressive disease containment effort in history,[xxvii] have proved to be effective in ameliorating the situation.

The main Chinese law governing such a situation is the Law on Prevention and Treatment of Infectious Diseases.[xxviii] This legislation categorises the infectious diseases into three classes on the basis of degree of infectiousness and likelihood to cause an epidemic: A, B and C, with A being the most infectious. Although Coronavirus was included as a Class B infectious disease, with control measures applicable to Class A diseases were allowed to better help the spread of the virus.[xxix] It was also included as a quarantinable infectious disease under the PRC Frontier Health and Quarantine Law.[xxx] This allowed for lockdowns of infected areas and mandatory quarantine of confirmed or suspected patients.

China also has other legislative frameworks to deal with an infectious outbreak. Their Emergency Response Law[xxxi] lays down the law for preventive measures, warnings, monitoring, legal liability of a government that violates the law, etc. The Law Penalties for Administration of Public Security[xxxii] puts down administrative penalties and criminal liabilities for those who disobey government orders, spread false rumours, interfere with prevention and control measures etc.

While these measures have significantly slowed down the spread of the virus in China, there remains a fear of relapse once the measures are lifted.[xxxiii] In fact, on 12/04/2020, the highest number of new cases in six weeks were reported.[xxxiv] Another concern is that the measures have come at a heavy cost – heavy monitoring systems such as facial recognition are a violation of privacy, there is no room for free speech as China Human Rights has tracked a number of cases where people who reported inadequate government measures to have “disappeared”,[xxxv] there is no law protecting access of information, and quarantine has turned into arbitrary detention.[xxxvi] An illustration of this is Dr. Li, who was reprimanded for spreading false rumours and disrupting public order, because he warned fellow doctors of the infectious disease in December, 2020.[xxxvii] Further, the measures China took may not be feasible for other countries, as “China is unique in that it has a political system that can gain public compliance with extreme measures.[xxxviii] While suspension of rights can be legitimate during an emergency, a balance between security and human rights has to be struck. The state may require excessive powers to deal with a public health emergency, but the powers cannot be arbitrary and should be given up once the emergency is over.

India: Legal Framework

The Government of India has been actively involved in curbing the spread of the novel Coronavirus, which is being touted as the greatest public health emergency since Independence,[xxxix] and is aiming towards “flattening the curve”[xl]. The Epidemic Diseases Act, 1897 [xli]  and the Disaster Management Act, 2005 [xlii] are the legislations that enable the Government to combat the spread of COVID-19.

The objective of the Epidemic Diseases Act focuses on “better prevention of the spread of an epidemic disease”. The Act gives power to the State Government to impose any regulations, as may be necessary, “if the ordinary provisions of law are insufficient” to curb the outbreak of a disease[xliii]. Further, any citizen who disobeys such an order made under this Act shall be liable to be punished under S. 188 of the Indian Penal Code, 1860.[xliv] The Central Government has the authority to inspect or detain any vessels to prevent an outbreak under this Act[xlv]. The potential abuse of the powers conferred by this Act is not a far-fetched notion as they can possibly be used by the executive to tamper with the fundamental rights of the citizens.[xlvi]

The government declared COVID-19 as a “notified disaster” under the Disaster Management Act. This enables the Central and State Governments to use the wide-ranging powers given to them under the said Act to combat the COVID-19 disaster. Empowered by the Act[xlvii], the Health Ministry has directed the National Pharmaceutical Pricing Authority to regulate the price and availability of sanitizers and masks. The definition of “disaster” under the Act has been interpreted as inclusive of biological disasters such as the COVID-19 but the question remains as to whether such a basic law is efficient to deal with a specific public health emergency. The absence of specific guidelines leaves a lot at the discretion of the executives. The pending Public Health (Prevention, Control And Management Of Epidemics, Bio-terrorism And Disasters) Bill, 2017[xlviii] does provide a ray of hope for the future. This draft bill contains provisions that clarify the power of government to quarantine the suspects and isolation of the infected individuals. It enables the Central Government to take charge of a particular State according to the demand of the situation.[xlix] Well-defined provisions such as these would make curbing the spread of a pandemic much more efficient.

The National Disaster Management Authority announced a nation-wide lockdown under S. 6(2)(i) of the Act in March, 2020[l]. This has impacted the freedom of movement and assembly of the citizens, which is essential for the prevention of the spread of the virus, with the exception of the provision of essential goods. It is pertinent to note that some states have imposed S. 144 CrPC[li] to control the situation at their own discretion. Violators of the lockdown are being charged under the grounds of negligent [lii] or malignant[liii] acts. People escaping quarantine are also being booked[liv]. The State authorities are being vigilant, which is visible from the number of arrests being made. In Badaun district of Uttar Pradesh, 568 arrests have been made for violating the lockdown.[lv] Further, the police authorities in states like Assam are also arresting people for spreading fake news related to the issue.[lvi]

India: Proclamation of an Emergency?

Due to the effect of the lockdown on fundamental rights, there is an ongoing debate as to whether or not an emergency should be imposed. In India, there are three kinds of emergencies that can be imposed. The current situation does not fulfil the grounds of a State Emergency (failure of constitutional machinery in state)[lvii] and National Emergency (war, external aggression or armed rebellion).[lviii]  However, a petition has recently been filed in the Supreme Court[lix] for issuing directions to the government to declare a Financial Emergency under Article 360,[lx] which, inter alia,  allows for salary cuts of all or any class of person serving the union or state including judges, and empowers the union to direct states regarding financial matters. The Indian economy was in a slowdown[lxi] before the virus hit the country, and now the lockdown measures will heavily impact not only sectors such as travel, tourism, manufacturing, construction, airlines, but also India’s balance of trade.[lxii] Although the Court cannot per se direct the Centre to declare an Emergency,[lxiii] given the country’s limited resources, controlling and refocusing government spending towards the health sector and social welfare can be a good move.


There are two Bills pending in the Indian Parliament that need immediate attention after the situation settles-  the National Health Policy 2009[lxiv] and Public Health (Prevention, Control And Management Of Epidemics, Bio-terrorism And Disasters) Bill, 2017.[lxv] This is because there is a dire need for a single comprehensive legislation to deal with such biological disasters covering all preventive and control measures. Such a legislation should also cover resource allocation measures during a public health emergency. Spain recently nationalized all its private healthcare providers to curb the pandemic.[lxvi] Recently, the Supreme Court rejected a plea to nationalize healthcare stating that the court cannot direct the government to take such a measure.[lxvii] Although this may not be feasible in India with its limited resources, testing and treatment of the infectious disease can be nationalized during a public health emergency.

India is a democratic nation, and it should be the utmost effort of the government to avoid using any arbitrary measures based on discretion to control such situations. It is, therefore, put forth that a concrete legislation with systematic instructions should be passed by the Parliament.  Inspiration can be drawn from Canada’s Public Health Agency of Canada Act of 2006 and Quarantine Act of 2005.[lxviii] The latter provides for the creation of quarantine facilities to combat such situations. A provision ensuring state responsibility, like the Chinese Emergency Response Law providing state legal liability in case of inadequate government response during a public health emergency, should also be incorporated.[lxix] These legislations ensure a certain credibility and accountability on part of the government to avoid the abuse of power.


The above analysis highlights that inefficient laws and lack of control can lead to a global pandemic claiming the lives of thousands of people. If only China had taken appropriate measures either to regulate the trade and consumption of wildlife or would have contained the virus with travel bans, today the world would not have faced such a dilemma. On one hand, the Chinese laws to handle a public health emergency are adequate, but wrong implementation of the same can lead to a serious human rights violation. On the other, India lacks adequate legislation for a public health emergency in the first place. It is the responsibility of the governments to formulate a legal framework that can effectively prevent and control the spread of such infectious diseases in the future, and thus nip the evil in the bud.


[i] SARS (severe acute respiratory syndrome), NHS UK, available at, last seen on 08/04/2020.

[ii] COVID-19 Dashboard by the Center for Systems Science and Engineering (CSSE) by John Hopkins University and Medicine, John Hopkins University and Medicine, available at, last seen on 14/04/2020.

[iii] G. G. Gabriel,  Will China Say No to Wildlife Trade?, UN Chronicle, available at, last seen on 07/04/2020.

[iv] Xi stresses role of traditional Chinese medicine for ‘Healthy China’, China Daily,  available at, last seen on 07/04/2020.

[v] B. Westcott & S. Deng, China has made eating wild animals illegal after the coronavirus outbreak. But ending the trade won’t be easy, CNN, available at,  last seen on 13/04/2020.

[vi] Wildlife Protection Act 1988, (China).

[vii] R. Fobar, China promotes bear bile as coronavirus treatment, alarming wildlife advocates, National Geographic, available at,  last seen on 13/04/2020.

[viii]  Xinhua, China bans illegal wildlife trade and eliminates the abuse of wild animals, The National People’s Congress of the People’s Republic of China, available at, last seen on 10/04/2020.

[ix] Bloomberg News, Wuhan Is Returning to Life. So Are Its Disputed Wet Markets, Bloomberg Quint, available at, last seen on 13/04/2020.

[x] U Baxi, Nations must not ignore principles of existing international law in fight against COVID-19, The Indian Express, available at, last seen on 13/04/2020.

[xi]  Art. 27, Wildlife Protection Act 1988, (China).

[xii] Art. 29, Wildlife Protection Act 1988, (China).

[xiii] Art. 30, Wildlife Protection Act 1988, (China).

[xiv] Art. 49, Wildlife Protection Act 1988, (China).

[xv] Art. 47(a), Wildlife Protection Act 1988, (China).

[xvi] Recommendations from the Environmental Investigation Agency regarding revision of the Wildlife Protection Law of the People’s Republic of China, Environmental Investigation Agency, available at,  last seen on 09/04/2020.

[xvii] REPORT OF THE UNITED NATIONS CONFERENCE ON ENVIRONMENT AND DEVELOPMENT, General Assembly, UN Document A/CONF.151/26 (vol. I), 3, available at, last seen on 13/04/2020.

[xviii] F. Master & S. Yu, ‘Animals live for man’: China’s appetite for wildlife likely to survive virus, Reuters, available at, last seen on 13/04/2020.

[xix] W Yu, Coronavirus: Revenge of the Pangolins?, The New York Times, available at, last seen on 12/04/2020.

[xx] Supra 7.

[xxi] Supra 18.

[xxii] H. Briggs, Coronavirus: Putting the spotlight on the global wildlife trade, BBC available at, last seen on 13/04/2020.

[xxiii] WHO Timeline – COVID-19, World Health Organization, available at—covid-19, last seen on 09/04/2020.

[xxiv] M. Swart, Timeline: How the new coronavirus spread, Aljazeera, available at, last seen on 09/04/2020.

[xxv] O. Holland & A. Lin, How to design a hospital that’s built in days, by someone who’s done it before, CNN (08/02/2020) available at, last seen on 13/04/2020.

[xxvi] J. Tidy, Coronavirus: How China’s using surveillance to tackle outbreak, BBC (02/04/2020) available at, last seen on 13/04/2020.

[xxvii] Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19),  16-24 February, 2020, available at, last seen on 10/04/2020.

[xxviii] Law of the People’s Republic of China on the Prevention and Treatment of Infectious Diseases, 1989 (China).

[xxix] FALQs: Measures to Control Infectious Diseases Under Chinese Law, Library of Congress, available at, last seen on 09/04/2020.

[xxx] Frontier Health and Quarantine Law of the People’s Republic of China, 1986 (China).

[xxxi] Emergency Response Law of the People’s Republic of China, 2007 (China).

[xxxii] People’s Republic of China Law on Penalties for Administration of Public Security, 2005(China).

[xxxiii] China fears second wave of COVID-19 outbreak, Aljazeera (02/04/2020) available at, last seen on 13/04/2020; Coronavirus: China reports no Covid-19 deaths for first time, BBC (07/04/2020) available at, last seen on 13/04/2020.

[xxxiv] Russian border becomes China’s frontline in fight against second virus wave, The Economic Times (13/04/2020) available  at, last seen on 13/04/2020; K. Mayberry & S. Aziz, China reports six-week high of coronavirus cases: Live updates, Aljazeera (13/04/2020) available at, last seen on 13/04/2020.

[xxxv] Coronavirus: Why have two reporters in Wuhan disappeared?, BBC (14/02/2020) available at, last seen on 13/04/2020.

[xxxvi]  M. Swart, How the coronavirus has deepened human rights abuses in China, Aljazeera (12/03/2020) available at, last seen on 13/04/2020.

[xxxvii] M. Bociurkiw, China’s hero doctor was punished for telling truth about coronavirus, CNN (11/02/2020) available at, last seen on 13/04/2020.

[xxxviii] K. Kupferschmidt & J. Cohen, China’s aggressive measures have slowed the coronavirus. They may not work in other countries, Science (02/03/2020) available at, last seen on 13/04/2020.

[xxxix] S. Ghose & R. Jetley, Does the Constitution Allow Modi to Declare a National Emergency Over COVID-19?, The Wire, available at, last seen on 09/04/2020.

[xl] Has the curve flattened?, John Hopkins University and Medicine, available at, last seen on 13/04/2020.

[xli] The Epidemic Diseases Act, 1897.

[xlii] The Disaster Management Act, 2005.

[xliii] S. 2, The Epidemic Diseases Act, 1897.

[xliv] S. 3, The Epidemic Diseases Act, 1897.

[xlv] S. 2A, The Epidemic Diseases Act, 1897.

[xlvi] Supra 39.

[xlvii] S. 10, The Epidemic Diseases Act, 1897.

[xlviii] Public Health (Prevention, Control and Management of Epidemics, Bio-terrorism and Disasters) Bill, 2017 (pending).

[xlix]S. N. Sharma, How India is fighting Coronavirus with a colonial-era law on epidemics, Economic Times, available at, last seen on 13/04/2020.

[l] S. 6(2)(i), The Epidemic Diseases Act, 1897.

[li] S. 144, The Code of Criminal Procedure, 1973.

[lii] S. 269, The Indian Penal Code, 1960.

[liii] S. 270, The Indian Penal Code, 1960.

[liv] S. 271, The Indian Penal Code, 1960.

[lv] PTI, Lockdown violation: 568 arrested, Rs 13 lakh collected as fine in UP, The Economic Times, available at, last seen on 14/04/2020.

[lvi] T. Devi, Assam Police fights coronavirus ‘infodemic’: 52 cases registered, 25 people arrested for spreading fake news, 110 sent for counselling, Firstpost, available at, last seen on 13/04/2020.

[lvii] Art. 356, the Constitution of India.

[lviii] Art. 352, the Constitution of India.

[lix] S. Sonkar & A. P. Bhattacharya, Plea asks SC to impose Financial Emergency due to COVID-19 outbreak: Court can’t intervene to such extent, it can only ask, not direct Centre, Firstpost (06/04/2020) available at, last seen on 10/04/2020.

[lx] Art. 360, the Constitution of India.

[lxi] P. Chakravarty, Viewpoint: How serious is India’s economic slowdown? BBC (27/08/2020) available at, last seen on 13/04/2020.

[lxii] Minutes of the Monetary Policy Committee Meeting March 24, 26 and 27, 2020, RBI Press Release (13/04/2020) available at, last seen on 13/04/2020.

[lxiii] Supra 59.

[lxiv] National Health Policy, 2009 (pending).

[lxv] Supra 48.

[lxvi] S. Mair, How will coronavirus change the world?, BBC Future, available at, last seen on 13/04/2020.

[lxvii] N. Chaudhary, SC Rejects Plea Seeking Nationalisation Of Health Care Sector Amid COVID-19 Outbreak, LiveLaw (13/04/2020) available at, last seen on 13/04/2020.

[lxviii]  M. Tewari, India’s fight against health emergencies: In search of a legal architecture, Observer Research Foundation, available at, last seen on 09/04/2020.

[lxix] Supra 31.

By Kavya Jha and Palak Kapoor, Associate Editors, RSRR.


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