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The deadly COVID-19 has claimed over 19, 647 lives across the world and its affect is increasing day by day. This has led to wide-spreading panic. The extent is so great that the World Health Organisation has declared COVID-19 outbreak as a pandemic. This has forced the Indian Government to invoke its 123 years old, British Era law to combat the outbreak of COVID-19.
The Epidemic Diseases Act, 1897 was specifically passed to contain the spread of diseases such as swine flu, cholera and dengue. On 11th March a meeting was held under the chairpersonship of Health Minister Harshvardhan, where it was decided that all states should invoke the provisions of Section 2 of Epidemic Diseases Act, 1897.
Why was the act introduced?
The Bombay bubonic plague outbreak was one of the worst crises faced by our country during 1896-97. The outbreak of the plague resulted in a social and political crisis. It threatened the trade, damaged the productivity of goods and trade relations with other countries. To bring the situation under control, British Government hastily passed the Epidemic Diseases Act, 1897. The main objective of this act was to curb the outbreak of the bubonic plague.
Its scope and objectives
The main objective of this act is to tackle spread of deadly communicable diseases. It empowers the Central Government to take special measures and impose regulations to curb the spread of epidemic.
The act has been implemented few times in our country. In 2015, the act was implemented to deal with the spread of malaria and dengue. In 2009, to combat the spread of swine flu spread in Pune. Section 2 powers were used by the government, and swine flu was declared an emergency disease.
Salient Features of the Act
Power to the Central and State Government – The Epidemic Diseases Act, 1897 provides government a wide ambit of power and discretion. Under Section 2 of the act the State Government can impose temporary restriction in order to avoid the spread of the disease. This section will be invoked when ordinary provisions of the law are insufficient to curb the spread of the disease. By a public notice, the government can notify that the restrictions should be observed by the public. Furthermore, the State Government can also inspect persons travelling to the state if they are suffering from the disease and provide them with temporary accommodation.
Section 2(a) empowers the Central Government to take preventive measures such as inspection of any ship or vessel leaving or arriving at any port, to stop the outbreak of the disease.
Punishability – Under the Section 3 of the act, when a person disobeys the regulations imposed by the government under this act, he is punishable under section 188 of Indian Penal Code. Section 188 of Indian Penal Code states that an order promulgated by a public servant lawfully empowered to do so, and disobedience to such orders causes obstruction, annoyance or injury to any person will be punished with imprisonment which may extend six months and fine of one thousand rupees.
No Legal Proceeding – Section 4 of this act clearly states that no suit or legal proceeding shall lie against any person under this act.
Progress made under the Act
The National Health Bill, 2009 was an attempt to ensure a robust legal framework on public health and a requisite system to deal with public health emergencies with the cooperation of Central and State Government. Chapter II of National Health Bill draft, 2009 lays down the obligations of the government shall take necessary legal steps which includes enactment of law to prevent the outbreak of communicable diseases and in case public health emergencies. The enactment should be in accordance and compliance with the rights enumerated under the Epidemic Diseases Act. It also aims to establish a National Public Health Board which focuses on adopting a national health programme for every five years. Gujarat and Karnataka have made efforts in drafting the National Health Bill. Madras Health Act, 1939 and Travancore Cochin Public Health Act are some examples of efforts made by states to achieve public health.
For tackling the recent Covid-19 pandemic, the Central and State governments are taking preventative measures to stop the rapid spread of the virus. On 11th March, 2020, the Cabinet Secretary of India allowed all States and Territories to implement the Epidemic Diseases Act. Since then, States have taken steps such as ordering closing of restaurants, clubs and bars, and even imposing S. 144 in some States, such as Maharashtra and Rajasthan.
Scope for Misuse – Epidemic Diseases Act, 1897 is a British era law which can be used for abuse of powers. It would not be harsh to say that it is a century old pointless law which needs a major overhaul.
Ambiguity – There is not a single word in the act which will invoke the functioning if this act. No specific grounds are mentioned that how this act will come in force. It is also needs a regulation in the territorial boundaries which the act covers. One of the most alarming questions raised by this act is that there no precise mention regarding to the human and legal rights during the epidemic. This gives unlimited powers in the hands of the government to shut down public gatherings. It does not describe any duties of the government during the period of epidemic.
Skewed Distribution of Power – Epidemic Diseases Act only specifies the powers of the government and keeps blind eyes on the rights of the citizens. Indeed this act is so brazen, that it does not even address the concern of individual autonomy, liberty and privacy. An act should work for the good of the citizens, considering their needs and their social circumstances. This act poses a great threat to citizens during the epidemic, as it creates a state on a lockdown which will lead to panic and resentment amongst the people. Basically, this act undermines the faith of people in legislation. The 113-year-old law has not been amended even after a century. The act is spineless which is purely regulatory in nature and lacks the notion of public health.
There is an acute need to strengthen the legal framework to prevent and control the spread of communicable and other diseases in India. The Epidemic Diseases Act is flawed and it needs a major overhaul or a significant amendment as it presently cannot cope with the changing identity of the public health. It merely addresses the concerns of public health, which exploits the State-assured citizen rights.
There is need of a clear and accurate piece of legislation which deals with the outbreak of communicable disease. A legal framework for providing essential health services and tackling health emergencies should be introduced. We also need a comprehensive, integrated and accurate legal provision for the control of public health emergencies in India which is parallel to rights, people-focused and concerned with public health.
Author: Ashish Kumar from Hidayatullah National Law University, Raipur .
Editor: Anna Jose Kallivayalil from NLU, Delhi.