Bangladesh’s measles crisis and the question of legal responsibility

Measles is amongst the most preventable diseases known to medicine. A single vaccine, dosed twice, prevents it in the overwhelming majority of children. So, when nearly a thousand children have died of measles in a nationwide outbreak since March this year, coinciding with the steepest decline in Bangladesh’s vaccine coverage, from nearly 99.7 per cent as recently as in 2021 to roughly 56–59 per cent by 2025, well below the 95 per cent threshold needed to interrupt transmission, one must ask: was this risk foreseeable, and if so, did the state do enough to avert it?

In fact, in early September, the High Court Division (HCD) of the Supreme Court of Bangladesh (SCOB) has issued a rule asking why the family of a measles victim should not receive Tk 1 crore in compensation.

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Constitutionally speaking, Article 15(a) imposes securing medical care among the fundamental responsibilities of the State, while Article 18(1) places public health among the State’s primary duties. However, both of these provisions are part of the fundamental principles of state policy, and thus, according to Article 8(2), are judicially unenforceable. Meaning, although the Constitution recognises the importance of public health, it does not, systematically, allow a citizen to demand vaccination as an enforceable constitutional right. The workaround can be found through Article 32’s protection of life, which has long been interpreted by our courts as a concept beyond mere physical existence, including protection against foreseeable and preventable threats to survival.

The aim is not to make the State responsible for every outbreak that occurs, but to establish a legally responsible framework that will ensure a timely response, so when a similar crisis emerges, the State speaks with action rather than regret.

Moreover, the Infectious Diseases (Prevention, Control and Elimination) Act 2018 is the primary legislation that governs issues relating to prevention and control of such diseases in Bangladesh. Section 4 provides a list of infectious diseases, which is non-exhaustive, and the Government may, by gazette, bring any emerging or re-emerging diseases within the Act. The Act further places broad preventive responsibilities on the health authorities in its provisions, including duties to inspect and monitor suspected infections, declare an infected area, and take necessary measures to contain and prevent the transmission. Further, sections 25 and 26 provide for penal sanctions against individuals concealing an infection or disregarding any administrative orders directed under the Act. However, the Act does not prescribe a mandatory minimum vaccine reserve, impose a legal obligation to report a stockout, or establish a minimum coverage threshold. Section 32 empowers the government to make rules, but the Act nowhere specifies how the state should manage an emergency outbreak like the present one.

So when the state outright cancelled a previously deferred supplementary immunisation campaign rather than rescheduling it, or when it moved away from  UNICEF’s vaccination procurement channel toward a competitive-tender-based system, despite explicit and repeated warnings of the risks, followed by a severe decline in vaccination coverage and ultimately, the outbreak - none of it, strictly speaking, breached a legal duty. This is because the statute only contemplates the citizens failing the state, not the other way around.

India shows that the alternative is not necessarily hypothetical. Its Epidemic Diseases Act 1897, together with the Disaster Management Act 2005, gives the State explicit emergency powers over public health, and a number of significant case precedents have been set out in this regard. The 2021 case of In Re: Distribution of Essential Supplies and Services During Pandemic (2021), where the Indian Supreme Court took suo motu cognisance of the second COVID-19 wave; or the 2026 case, Rachana Gangu v Union of India, where the court ordered a no-fault compensation framework, holding that grave harm following a state-led public health intervention imposes a positive obligation on the state, can be exemplary for Bangladesh.

International law establishes a general preventive standard. Article 12 of ICESCR requires the States to take measures for the prevention, treatment and control of epidemics and other diseases. Similarly, Article 24 of the UNCRC mandates the States to pursue appropriate measures to ensure the highest attainable right to health for children.

In conclusion, the 2018 Act should be amended to require a minimum and publicly disclosed vaccine reserve, a scientific coverage threshold and a no-fault compensation framework. Ultimately, the aim is not to make the State responsible for every outbreak that occurs, but to establish a legally responsible framework that will ensure a timely response, so when a similar crisis emerges, the State speaks with action rather than regret.

Irna Jahan Shejuti is a student of law, University of Dhaka.