The Epidemic Legislation in India- A Critique

Introduction

The end to the decade had just began and the world was envisaging the same, however the situation seemed to be tense and grim in China. On December 31, 2019, the World Health Organisation’s (“WHO”) China office heard the first reports of a previously-unknown virus behind a number of pneumonia cases in Wuhan, a city in Eastern China with a population of over 11 million. Covid-19, an epidemic that was primarily restricted to China, has unfortunately now spread over its tentacles worldwide. The impact of COVID-19/ Coronavirus has been so ghastly that it has already engulfed more than 200 countries and territories more than 5 million number of confirmed cases and ever increasing, compelling WHO to declare COVID-19 as a “global health emergency”.

THE EPIDEMIC DISEASES ACT, 1897 (“the Act”)

Contents

1. Steps taken by Government

2. Scheme of the Act

3. Shortcoming of the Act

4. How the Disaster Management Act, 2005 can be used to improve the Act

5. The Epidemic Diseases (Amendment) Ordinance, 2020

6. Conclusion

1.Steps taken by Government – State and Centre

The Government of Maharashtra, Delhi, Punjab, Haryana among others took umbrella under this archaic law to declare emergency in their respective areas.

For instance, as a forerunner, Government of Maharashtra, Department of Revenue and Forest, Disaster Management, Relief and Rehabilitation on March 23, 2020 invoked the emergency provisions of the Act for putting a lockdown on the State of Maharashtra.

Biological and public health interventions aside, we need to closely look at the legal and on-ground framework to review health system preparedness.

2, Scheme of the Act

The Epidemic Diseases Act, 1897 is an enabling Act which provides for the better prevention of the spread of dangerous epidemic diseases. This Act is applicable throughout India except the territories which immediately before the November 01, 1956 were comprised in Part B states which were earlier the princely states of India before the States Reorganisation Act, 1956 was promulgated.

I) Power to take special measures and prescribe regulations as to dangerous epidemic disease

The Act provides that during the time of a dangerous epidemic disease, a state government has the power to take special measures (if it thinks that the ordinary provisions of the law for the time being in force are insufficient for the purpose) in order to curb and eradicate the outburst of such disease.

The Act states that in a scenario where the state government is satisfied that the state or any part of such state has been visited by, or threatened with, an outbreak of any dangerous epidemic disease, in that case the state government may take special measures, or require or empower any person to take, such measures as required.

Such state government is also required to issue public notices which must prescribe the temporary regulations that are required to be observed by the public or by any person or class of persons as it shall deem necessary to prevent the outbreak/spread of such disease. Further, the state government has the power to determine in what manner and by whom any expenses incurred (including compensation if any) shall be defrayed.

Additionally, the Act clearly specifies that the state government has the authority to take measures/form regulations for the inspection of persons travelling by railway or otherwise and the segregation in hospital (temporary accommodation or otherwise) of persons suspected by the inspecting officer of being infected with any such disease.

II) Power of the Central Government

Similar to the powers given to the state government, the Act bestows power on the central government as well. According to the Act, the Government of India may take measures and prescribe regulations for the inspection of any ship or vessel leaving or arriving at any port in the territories to which this Act extends and for such detention thereof, or of any person intending to sail therein, or arriving thereby, as may be necessary. The government of India can do so if it is satisfied that India or any part of the nation is visited by, or threatened with, an outbreak of any dangerous epidemic disease and that the ordinary provisions of the law for the time being in force are insufficient to prevent the outbreak/spread of such disease.

III) Penalty

As per the provisions of the Act, any person disobeying any regulation or order made under this Act is deemed to have committed an offence which is punishable under section 188 of the Indian Penal Code (45 of 1860).

It is to be further noted that as per the provisions of Section 4 of the Act, no person can file a suit or other legal proceeding against any person for anything done or in good faith intended to be done under the provisions of the Act.

3. Shortcomings of the Act

1. Since it’s a century old act, the territorial jurisdiction of the said act needs to be more clearly defined and needs an overhaul.

2. The said act is silent on the definition as to what are Dangerous Epidemic Diseases. Therefore, whether any disease is dangerous or not is purely speculative or rather in the current case of COVID-19, it relied upon the world statistics and how the world responded to it. If there is a proper definition, then there can be a universal application and India can be a first responder to such epidemics in future.

3. The said act only talks about isolation, segregation, inspection measures to contain the disease. However, the act is typically silent about the handling of the epidemic in the advance stages i.e. distribution of supplies, vaccines and response measures. One may argue that such measures are covered under the umbrella of Section 2 at “…prescribe such temporary regulations to be observed by the public or by any person or class of persons as [it] shall deem necessary to prevent the outbreak of such disease or the spread thereof ….”. However, it is the view of the writer that such umbrella provisions does not define a basic framework or a guide per se, the responding public bodies are left to invent directions to counter epidemics on an ad-hoc basis. There can be no concentrated nationwide response without a guiding policy framework. It can be seen from the varied responses of different states in India with the State of Kerala leading in containing and successfully applying the invented measures and other states lagging behind and are facing difficulty in containing the spread of the virus.

4. There is no explicit reference to ethics and human rights under such situation and the same is left under another century old provision i.e. Section 188 of CrPC.
   

4. How the Disaster Management Act, 2005 can be used to improve the Act

1. The Disaster Management Act, 2005 provides for a detailed action plan from the national level upto the local level. It even provides for the execution of these specific area wise plans. However, The Epidemic Act, 1897 is a sweeping act with no provision of any plan whatsoever and therefore such pandemic though directly covered under the Epidemic Act, 1897 had to be declared a disaster under the Disaster Management Act, 2005.

2. Such specialized pandemics require specialized regulations. It is predicted that the world shall witness more of such pandemics in the near future with higher frequencies and global level catastrophe.

5. The Epidemic Diseases (Amendment) Ordinance, 2020

1. Due to the unprecedented attacks on the healthcare service personnel in India, the Government of India was forced to bring in an ordinance to protect the frontline warriors. The use of the word “forced” is magnanimous to the acts of the select few whose acts have been not adequately punished. The social sense of these sections of the society is deplorable and necessitates passing of such law. This ordinance was promulgated on April 22, 2020.

2. It is pertinent to note that the term “healthcare service personnel” is not covered under the definition of Public Servant under Section 21 of the Indian Penal Code. In the considered view of the author inclusion of “healthcare service personnel” under the definition of Public Servant would enable applicability of the stringent provisions in that Code. The Code provides for punishment of 10 years of imprisonment for the same offence that under the ordinance provides for punishment of 7 years of imprisonment. Furthermore, even threat of injury to a public servant attracts a penalty of 2 years of imprisonment or fine, however, the ordinance fails to protect the healthcare service personnel from the same.

3. It is the considered view of the author that a more comprehensive protection is required to protect the “healthcare service personnel”. This is because the Act is a special act applicable only during an epidemic and not otherwise. Unfortunately, the healthcare workers are subjected to acts of violence on a regular and everyday basis. Therefore, any relevant amendment to include “healthcare service personnel” into the purview of the Indian Penal Code is imperative.

6. Conclusion

Although India has a number of legal mechanisms to support public health measures in an epidemic situation for instance the Public Health Act, 1987 (ad-hoc), they are not being addressed under a single legislation. As stated above, the said century old act is a concise act that fails to effectively address the situations and therefore requires an overhaul to counter the rising complexities of the present day epidemics. It is pertinent that many of the important concepts be defined for instance definition of human rights under such containment, rights and duties of public officials, ethics and a separate penal clause, among others.

As a noted writer said, humanity needs to make a choice. Will we travel down the route of disunity, or will we adopt the path of global solidarity? If we choose disunity, this will not only prolong the crisis, but will probably result in even worse catastrophes in the future. If we choose global solidarity, it will be a victory not only against the coronavirus, but against all future epidemics and crises that might assail humankind in the 21st century.”

“This storm will pass. But the choices we make now could change our lives for years to come”.