OVERHAULING OF EPIDEMIC DISEASE ACT, 1897: IN THE CONTEXT OF COVID-19
Soumya Nayak, II year B.B.A.,LL.B., National Law University Odisha
Recently, various states in India have invoked legislation to curb this menace caused by a novel coronavirus. In this context, this article aims to review the legislation regarding its significance in the current scenario. It seems that the Epidemic Disease Act of 1897 is an archaic legislation that came into existence 123 years ago. With the change in era, it is ignorant of us to still be dependent on this act. During this crucial crisis, a need is felt for a consolidated, holistic, and significant legal provision to curb the outbreak in India.
This article endeavours to provide the description, specific features or elements, historical outlook, limitations, and the amendments made under the said act by our government to tackle the current situation. It also aims to analyse each section of the act invoked, which is significant for recommendations or any alterations in this discipline.
EPIDEMIC DISEASES ACT (EDA), 1897
As per the advice of the Health Ministry, in March, the Union government has invoked the Epidemic Diseases Act, 1897. This act came into force on 4th February 1897 when a Bubonic Plague had been discovered in Mandvi (then a part of Bombay, but now in Gujarat) during the nineteenth century, which disrupted daily lives and caused several deaths.[i] Therefore, to prevent its spreading, the then Parliament enacted the said act, consisting of four sections. Significant sections of this act are:
Section 2 states that the government is empowered to take concrete actions and stipulated directions if the state is under a threat of any dangerous disease or the ordinary laws are insufficient for the purpose. Section 2A provides the government with the power to make provisions for the inspection of any ships or vessels arriving or leaving ports and detention of a person who intends to sail or has sailed.
Section 3 deals with the framework which confers the government the power to impose penalties on those who disobey any regulations prescribed by the concerned authority under Section 188 of the Indian Penal Code (IPC). Section 188 as defined under Chapter X of IPC, “Of Contempts of the Lawful Authority of Public Servants” states that if any disobedience is caused by a person knowingly, leading to hindrance, annoyance, harm, or injury to any other person then such person will be punished under this section.[ii] First Schedule of Criminal Procedure Code, 1973, consider this offence is cognizable as well as bailable and can be brought to court by a magistrate.
Section 4 of the same act protects the person against any suit or legal proceedings for anything done with bona fide intention under this act.
LIMITATIONS OF THE EPIDEMIC DISEASES ACT, 1897
This act had been formulated 123 years ago, keeping in mind changes that happened during the recent years, it consists of several limitations. Gradually, principal factors responsible for the mushrooming of diseases have also been modified. For example, nowadays, we prefer to travel by air instead of a ship. The limitation arises here is that it focuses on travelling by ship or vessels and railways rather than aeroplanes.
As the act was authorized by the Britishers to control the situation in Bombay, it could be doubted that their real motive behind the enactment of the said act was to apprehend and seize public gatherings led by the revolutionist.
This act needs a lot of moderation because, with time, most epidemiological concepts have changed regarding precautionary measures undertaken to curb epidemic diseases. Besides, this act is not in conformity with the recent scientific knowledge that we used today in response to these diseases. For instance, it insists on the isolation or quarantine of patients at home but, is reserved on the scientific methods used to curb outbreaks such as immunization, vaccination, medication, government response towards the disease, setting up a laboratory, etc.[iii] It focuses more on the aversion to the spread of disease rather than to extirpate it. Thus, we need an activity that focuses more on scientific understanding rather than dealing with administrative and policing acts.
The provision of the definition of a “dangerous epidemic disease” is not mentioned in EDA.[iv] Criteria are not mentioned to determine how a disease is considered “dangerous” under the said act and who decides whether a disease is dangerous or not. But the problem persists, the said act neither prescribes a situation as when it should be invoked nor it tells us how to handle a current scenario as such, it only empowers the government to pass any guidelines or legislation as it deemed fit.[v] Also, it does not provide any directions to the government for the organization of committees or any special authority which can represent both central and state government and can act on its own in a preventive manner without waiting for the government’s approval.
This act does not provide any relief and financial assistance to the general public for sustaining their livelihood during the current crisis. Further, it can impose only criminal penalties for its violation rather than imposing both criminal and civil penalties.[vi] It also does not protect the healthcare workers, police personnel, or any other person from harassment, abuse, or any injury caused by performing their duties.
Most importantly, it does not protect citizens’ fundamental rights such as, right to privacy which comprises dignity, personal freedom, and liberty. Although there are some reasonable restrictions on fundamental rights in respect of public interest, the legislation does not provide a guarantee against the abuse of privacy right by the state.[vii]
EPIDEMIC DISEASES (AMENDMENT) ORDINANCE, 2020
After the approval of the proclamation of an Ordinance by the Union Government, to protect the nurses, doctors, and other healthcare service personnel and their property from attacks and harassment during epidemics, the President had sanctioned the Ordinance which covers the limitations and flaws in the previous act.[viii]This Ordinance enhances the powers of the Union to prevent such an epidemic and seeks to offer protection to medical professionals. Major provisions of this ordinance are:
Section 1A (a), which defines "act of violence" consists of the following acts committed against healthcare service personnel:
(i) harassment of such personnel and prohibiting him from discharging his duties
(ii) harm, injury, or danger to his or her life
(iii) obstructing him in discharging his duties
(iv) damage to any property of such personnel.
The Ordinance defines "healthcare service personnel" as the personnel who are at the risk of being impacted by an epidemic while carrying out his duties. They consist of:
(i) any public healthcare personnel
(ii) any other person authorized under the said act to avert the epidemic
(iii) any person declared by the government as such personnel.
It also expands the power of the Union to monitor any bus, train, ship, or aeroplane, arriving or leaving from any station, port, or aerodrome and detain any person intending to travel by any of these means.
For the protection of the Healthcare service personnel and their property, provisions have been made for those who commit or abet any act against the healthcare community, with imprisonment between three months and five years along with a fine between Rs.50,000 and Rs.2,00,000. If an act causes grievous hurt, then imprisonment will be between six months and seven years along with a fine between Rs.1,00,000 and Rs.5,00,000.
Further, provision has been made for the time-bound investigation which is to be done within 30 days after the registration of the First Information Report, and inquiry must be completed within one year if not then reasons must be recorded for the delay and the period must be increased for not more than six months.
To combat such an epidemic our country has amended this act which would safeguard the life as well as the property of the health service workers. Unfortunately, before this ordinance, no legislation exists to protect the life and property of the healthcare community during the pandemic. Although each state has amended this act as per their requirements and has their acts to grapple with the current scenario, there was a need for the single enactment in which all the provisions are assembled so that its implementation can be surveyed. It is contemplated that the passing of this Ordinance would bring positive changes such as the healthcare community will be able to perform their duties without any obstruction.
[i]Pushkraj Deshpande, ‘India: The Epidemic Act Of India 1897: An Analysis Vis-À-Vis The Covid-19 Pandemic’ (2020) <https://www.mondaq.com/india/government-measures/928706/the-epidemic-act-of-india-1897-an-analysis-vis-vis-the-covid-19-pandemic - :~:text=India%2C%20then%20under%20the%20rule,in%20the%20spread%20of%20plague.> accessed 24 August 2020.
[ii]‘What is Section 188 IPC, under which you will be booked for violating COVID-19 lockdown?’ The Indian Express(Mumbai, 24 March 2020) <https://indianexpress.com/article/explained/explained-section-188-of-ipc-under-which-you-can-be-fined-rs-1000-for-violating-lockdown-6328022/> accessed 24 August 2020.
[iii]Rakesh PS, ‘The Epidemic Diseases Act of 1897: public health relevance in the current scenario’ (2016) 1(3) IJME <https://ijme.in/articles/the-epidemic-diseases-act-of-1897-public-health-relevance-in-the-current-scenario/?galley=html> accessed 26 August 2020.
[iv]Aarshi R Kapoor, ‘Covid-19 v Law’ (2020) <http://www.legalserviceindia.com/legal/article-1854-covid-19-v-law.html> accessed 24 August 2020.
[v]Sonam Chandwani, 'Epidemic Disease Act and Covid-19' (2020) <https://www.lexology.com/library/detail.aspx?g=11baf77f-1104-4525-afd7-2487b1240a6c> accessed 26 August 2020.
[vi]Amar Patnaik and Nikhil Pratap, ‘India needs a new epidemic control and management law’ The Hindustan Times(New Delhi,21 May 2020) <https://www.hindustantimes.com/analysis/india-needs-a-new-epidemic-control-and-management-law/story-cglkPZb9OCLWObJjFqk2uO.html> accessed 3 September 2020.
[vii]Harleen Kaur, ‘Can the Indian legal framework deal with the COVID-19 pandemic? A review of the Epidemic Diseases Act’ (2020) <https://www.barandbench.com/columns/can-the-indian-legal-framework-deal-with-the-covid-19-pandemic-a-review-of-the-epidemics-diseases-act> accessed on 2 September 2020.
[viii]S.S. Rana & Co. Advocates, ‘India: Epidemic Diseases (Amendment) Ordinance, 2020 Receives Presidential Assent’ (2020) <https://www.mondaq.com/india/employment-and-workforce-wellbeing/941818/epidemic-diseases-amendment-ordinance-2020-receives-presidential-assent-> accessed 2 September 2020.