By- Achintaya Soni and Parul Dhingra
A 2-page legislation namely Epidemic Disease Act, 1897 which has largely remained untouched by the Parliament since the time of its inception has been brought out to operate at this crucial time of the spread of Coronavirus pandemic. Yet, it is not for the first time that this act has been brought to operate in India. Initially, the act was used to contain the outbreak of diseases like swine flu, dengue, malaria and cholera as well. Also, the act was brought to force in 2018 to stop the spread of cholera in Gujarat. The history of the act traces back to 1897 when it was first enacted to tackle the bubonic plague in Mumbai (formerly Bombay) in former British-occupied India. After about 4 months when this plague was identified in Bombay, Queen Victoria ordered for some stringent measures to contain it. The Epidemic Disease Act[1] came out to be the source of these necessary stringent measures. The law is meant for containment of epidemics by providing special powers to the Centre as well as the States for the implementation of measures to contain the spread of a disease.
Provisions of the Initial Legislation
There are in total 4 sections in this Act, where the first section defines the title and the extent of the act. Section 2 empowers the State Government to take, or require or empower any person to take, such measures and, by public notice, prescribe such temporary regulations to be observed by the public in case of an outbreak of a dangerous epidemic disease in the State. It may also prescribe regulations for examination 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.[2] Section 2A empowers the central government to take measures and prescribe the regulations for the inspection of any ship or vessel leaving or arriving at any port and the detention of any person intending to sail therein or arriving thereby.[3] Section 3 says that any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under section 188 of the Indian Penal Code.[4] Section 188 of the IPC provides for a punishment of either 1 month or fine of rupees 200 or both on any person who disobeys any order passed under the act, and a punishment of 6 months or fine of rupees 1000 or both if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray.[5] Section 4 provides for legal protection to any person who has done anything in good faith under the provisions of this act. [6]
Epidemic Disease Ordinance, 2020
On 22nd April 2020, President Ram Nath Kovind assented on the promulgation of an ordinance to amend the Epidemic Disease Act. It was brought out in response to a Public Interest Litigation[7] filed by a doctor from Nagpur, Maharashtra. The PIL demanded the availability of Personal Protective Equipments (PPEs) for the medical professionals. Also, it brought to light the plight of doctors and nurses due to increasing instances of violence against them during these challenging times of COVID-19. Such a situation tends to hamper the medical community from performing their duties to their optimum best and maintaining their morale, which is a critical need in this hour of national health crisis.[8] The acts of violence, under the ordinance, are made cognizable and non-bailable offences for compensation for injury to healthcare service personnel or for causing damage or loss to the property in which healthcare service personnel may have a direct interest in relation to the epidemic. Healthcare service personnel include public and clinical healthcare service providers such as doctors, nurses, paramedical workers and community health workers; any other persons empowered under the Act to take measures to prevent the outbreak of the disease or spread thereof; and any persons declared as such by the State Government, by notification in the Official Gazette. The ordinance provides that the commission or abetment of acts of violence shall be punished with imprisonment for a term of three months to five years, and with fine of Rs.50,000/- to Rs.2,00,000/-. In case of causing grievous hurt, imprisonment shall be for a term six months to seven years and with fine of Rs.1,00,000/- to Rs.5,00,000/. Besides, the offender shall also be liable to pay compensation to the victim and twice the fair market value for damage of property. Also, offences shall be investigated by an officer of the rank of Inspector within a period of 30 days, and trial has to be completed in one year, unless extended by the court for reasons to be recorded in writing.
ANALYSIS AND RECOMMENDATIONS
TheEpidemics Act, 1897 along with Disasters Management Act, 2005 have been in tandem to fight the pandemic. However, it certainly has limitations that make this 150 year old legislation to tackle a 21st century health emergency.
Starting with the objective of the act which is to prevent spread of dangerous epidemic diseases, it miserably fails to provide a definite scope of the word ‘epidemic diseases’. The ambiguous language used in providing power to Central as well as State governments opens the doors for misuse of the indefinite control.
Even after the amendment, an act to fight a pandemic lacks a detailed follow up steps not only for the authorities but also the citizens. It is agreed upon by the National Disaster Management Authority that the act is inadequate to deal with bioterrorism or international spread of diseases.[9] Moreover, the act doesn’t cover all the phases required in dealing with an epidemic namely response and recovery from an epidemic.
The antiquated law falls short compared to the scientific developments taking place in the country. The present legislative framework fails to implement IHR (2005)[10] which is needed for prevention, mitigation and control of the spread of diseases internationally. Certainly, the major problem that can be apparently seen is that it lacks epidemiological transition. A balanced approach is the major requirement to tackle with health related issues because the sensitivity of the situation brings different sections of the society under the garb of a virus that knows no boundaries of laws.
The long list of public interest litigations filed in courts related to the pandemic substantiates the absence of a pro-active law to address all the circumstances related to a health emergency. When the legislations are completely devoid of the rights based approach, it gives unguarded control to the authorities and it eventually leads to encroachment of the fundamental rights of the citizens. A balance between security and rights has to be maintained.
Despite the fact that the power to legislate on ‘public health’[11] has been provided to the state, it is indispensable that a central law exclusively dealing with pandemics is put in place as deriving its power from the concurrent list.[12] Even though the dynamics of a country like India is different from others but inspiration can be taken from different legislations across the world. Countries like UK, USA, Singapore and Australia have enacted temporary legislations as a response to the pandemic which covers every aspect of the society that would be affected by the virus ranging from food supply to financial assistance to industries.
For health care protection, an attempt was made in India by making of The Public Health (Prevention, Control and Management of Epidemics, Bio-Terrorism and Disasters) Bill of 2017 which still needs approval of the Parliament. The current pandemic provides an opportunity to provide a comprehensive legal framework upon this subject in consonance with the present developments in the country.
CONCLUSION
Consequently, in a country like India, there are several laws, regulations and guidelines which though they relate to sectoral aspects, impinge on health care related activities. However, it is not sufficient. There is a dire need for a basic legislation on tackling a pandemic like health emergency that is comprehensive and cuts across sectors. A situation like health emergency requires a multi-disciplinary and multi agency approach. It requires coordination among Union, state and local governments on one hand and several government departments and agencies on the other hand.
Lawrence Gostin once conceptualized public health law as, “at its core, the authority and responsibility of government to ensure the conditions for the population’s health” but it is also an individual and communitarian responsibility when there is a pandemic. [13] Keeping in mind the same, a mix of coercive and rights based approach should be used to legislate upon a subject like pandemic management.
[1]The Epidemic Disease Act of 1897. Act No 3 of 1897. Available from: https://indiacode.nic.in/bitstream/123456789/10469/1/the_epidemic_diseases_act%2C_1897.pdf
[2]Ibid.
[3]Ibid.
[4]Ibid.
[5] Indian Penal Code, 1860; Available from: https://indiacode.nic.in/handle/123456789/2263?locale=en
[6]Supra Note 1.
[7]Dr.Jerryl Banait v. UOI, Writ Petition (C) Diary No. 10795 of 2020.
[8]‘Promulgation of an Ordinance to amend the Epidemic Diseases Act, 1897 in the light of the pandemic situation of COVID-19’ (Press Information Bureau, Government of India, Ministry of Health and Family Welfare), Available from: https://pib.gov.in/newsite/PrintRelease.aspx?relid=202493
[9] National Disaster Management Guidelines—Management of Biological Disasters, 2008. A publication of National Disaster Management Authority, Government of India. ISBN 978-81-906483-6-3, July 2008, New Delhi.
[10] International Health Regulations, 2nd edition (Geneva: World Health Organization, 2005).
[11] Indian Const. Seventh Schedule, State List, Entry 6
[12] Indian Const. Seventh Schedule, Concurrent List, Entry 29
[13] Chiradeep Basak, India Is in Need of an Inclusive Public Healthcare Law to Combat Pandemic, JURIST – Academic Commentary (June 23, 2020, 9:30 PM) https://www.jurist.org/commentary/2020/04/chiradeep-basak-public-health-law-india/