We all know that currently, the whole world is facing a pandemic that even threatens the existence of humanity. Daily we come across plenty of news about lacs of people being infected by the Corona Virus. Thousands of people are dying because of the virus that originated in Wuhan province of China.
The first case of coronavirus pandemic in India was reported on 30th January in Kerala. As of now (5th April 2020), the Health Ministry has confirmed 3577 cases with death tolls inching closer towards the hundred mark.
Currently, the Indian Government has invoked two special legislations to contain the viral spread. While the government is using the Disaster Management Act, 2005 and the Epidemic Disease Act, 1897 in tandem to tackle the spread, experts have expressly opined for the need of modern public health law.
On the 11th March 2020, the Union government ordered the states to implement the Epidemic Disease Act, 1897 to effectively enforce and pursue its advisory. Most of the Indian states have been invoking this law to implement measures like quarantine and isolation, even though the act is very short and brief.
This act is also being used for mandatory screening of the suspects of coronavirus. This 123-year old act allows the state to take appropriate measures that they need to implement to prevent the outbreak and anyone contravening it may face prosecution.
It is said that the Act does not reflect the realities of the spread of diseases in modern times, nor does it provide a framework to effectively respond to an outbreak like this.
What does the Act say?
This act was enacted as a response to the Bombay plague that spread throughout the nation in the year 1896 and led to death of thousands. This legislation has only four sections and it neither defines an epidemic nor a 'dangerous epidemic disease'.
Section 2 of the concerned act authorizes the state governments to take exceptional measures and prescribe regulations that are needed to limit the spread of the disease. As a result, states of India like Himachal Pradesh, Delhi, and Maharastra have come up with new regulations to cope up with COVID-19.
Section 2A of the Act empowers the central government to inspect the ships or vessels leaving or arriving at any port in India and detain people if necessary.
Section 3 of the Epidemic Diseases Act makes it a criminal offense to disobey any regulations or order mentioned under the act. This is according to Section 188 of the Indian Penal Code which provides for a fine of Rs 200 and/or imprisonment of one month. The penalty can be extended to Rs 1000 and/or imprisonment of 6 months can also be imposed, it depends on the impact of disobedience.
Section 4 of this act gives protection of the officials and persons acting under the law.
This act was also invoked by the Maharastra govt. in the year 2009 to contain the swine flu outbreak. In 2015, it was invoked to deal with dengue and malaria in Chandigarh.
Problems with the Act
Many legal experts are criticizing the act as they found it 'pre-constitutional' or in other words, they have described the legislation as draconian and outdated. For example, it talks about inspecting the ships or vessels, but as this law is outdated it fails to address the increasingly international travel, especially by air, increased urbanization, high density of people in the cities, migration due to pains, etc.
It can also be said that it empowers the central and the state govt to take sweeping actions without any parliament oversight whatsoever. It also lacks accountability and notifications or order issued thereunder are pure executive actions. Another point to look after is that when this law was drafted there was no concept of fundamental rights and it somehow violates these rights. restricting the right of citizens to enter into India or making it difficult is not only a denial of the fundamental right of free movement in India but also violates the right to get a health facility in India.
Another drawback of this law is that the legislation puts too much focus on the duties of the govt in controlling and preventing an epidemic, but not the rights of the citizens. It also does not mentions any scientific steps that the government needs to take to prevent and contain the spread. There requires a standard framework that will tell that under what circumstances states can take away rights and for how long and there must be someone who needs to take the decision and ensure that all citizens have access to basic services- food, water, sanitation, etc.
The Epidemic Disease Act also does not provide the power to the centre to intervene in biological emergencies. Also, it should be clear to everyone that health is a state issue.
This act needs to be repealed and should be replaced with an Act that takes care of the foreseeable and prevailing public health needs, including emergencies like bioterrorism attack and use of biological weapons by an adversary, cross border issues and international spread of disease.
Conclusion
However, it should be kept in mind that many a time the government has tried to repeal this century-old Act but due to certain complications, they are not able to do so. The centre drafted the 156-page Management of Biological Disaster Guideline in 2008. The realization came out that the prevailing Act was inadequate to deal with bioterrorism and the international spread of disease.
Because of the Epidemic Disease Act, govt was unable to regulate even the transfer of biological samples.
During the first term of the UPA government, A Public Health Emergencies Bill was drafted but the bill went into cold storage as most of the states were not accepting it. Also during the Modi government, a similar kind of bill was drafted and was more sincerely followed up with the health Ministry naming it Public Health (Prevention, Control, and Management of Epidemics, Bioterrorism, and Disasters) Bill 2017, proposing to repeal the Epidemic Law of 1897.
This bill clearly explains terms like quarantining of suspects and isolation of the infected people, in addition to empowering the centre to direct states and district or local bodies as well as usurping powers bestowed to states under Section 3 of Epidemics Law, 1897.
Also, this embedded a provision marking that anyone intentionally violating the law could be charged with a fine up to 1 lakh and can be imprisoned for 2 years.
These provisions mentioned in the above legislation would have proved to be very useful in fighting against the Corona Virus, but unfortunately, we are dealing with this pandemic with a 123-years old Act.
Aniket Tiwari
B.A.LL.B (Hons.)
2019-24
Faculty of Law
Banaras Hindu University
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