Updated: May 30, 2020
Team AmicusX illustrates the importance of reform to the archaic law which has governed the society during this trying times of Corona Virus. In this post, the author has discussed the lacunae in the present law and the possible reforms.
Corona Virus outbreak has become a menace not only for India but the entire world. Accounting for about 93,617 deaths worldwide,[i] this pandemic has pushed the word into a vacuum and is lingering over human prosperity. With borders shut, flights stopped, economies crashed and trade disheveled, Corona has left us at crossroads to decide between globalization and isolation.[ii] Thus to parry the blow, the government has invoked Section 2 of the Epidemic Diseases Act 1897 and has imposed several restrictions on the movement of people within the country. But, this 123 years old act is definitely not apt for countering an epidemic in the current scenario. It is silent on several fronts including, but not limited to, the administrative steps to be taken while battling an epidemic, the duties and rights conferred on health personnel, and the rights of citizens.
Epidemic Diseases Act, 1897- An analysis of the lacunae
The Epidemic Diseases Act empowers the state as well as the central government to make special provisions for the containment of an epidemic and further mentions inspection of dockyards and the persons boarding ships or vessels as an exclusive responsibility and duty of the Central government. The act under Section 3 also gives a reference to a penalty being imposed pari passu of Section 188 of the Indian Penal Code, 1860 (hereinafter, IPC) for violators. The act, under Section 4, also confers immunity from legal suits or legal proceedings on any person(s) for any act intended to be done under good faith in pursuance to the objectives of this act.
However, the irony lies in the fact that this act nowhere defines it’s very objective i.e. an epidemic. The act fails to provide any insight on what is to be perceived as an epidemic or how and when it is a communicable disease be understood as an epidemic. The act also fails in laying down duties for health personnel or officers acting under this act to thwart the spread of these diseases. The act also doesn’t mention what acts are constituted under and the extent of ‘good faith’ mentioned under Section 4. Further, there are many ambiguities in the text of the legislation which prove to be the hindrance in its effective application.
But a peek into the past shall help us understand these legal anomalies. This 2-page long act was enacted to curtail the 1896 Bubonic plague epidemic of Bombay, in pursuance of the speech given by Queen Elizabeth directing both the houses of England, as then existed, ‘to apply stringent measures at their disposal for containment of this disease’.[iii] Surprisingly, John Woodburn, the councilor who tabled the bill, had himself considered the powers conferred under this act as ‘extra-ordinary albeit necessary’.[iv] Historical accounts show that the powers were used so authoritative and arbitrarily that usage of rough and harsh methods by soldiers to carry people to hospitals was rampant, there was wanton destruction of property, people were stripped off naked for inspection regardless of their genders and a ‘reign of terror’ had ensued in Poona (present-day Pune).[v]
Thus, it can be clearly construed that the ambiguities were purposely planted in the text of the statute to give legal backing to these reckless acts of the British soldiers. Therefore, a reconsideration and an overhaul of this draconian enactment are very imperative to ensure effective treatment for the people of India.
Reform is a must
There are several colonial-era laws that are being used to date and have, despite their criticism, served us well like the Indian Penal Code, 1860, Indian Evidence Act, 1872, the Indian Contracts Act, 1872, etc. But it is a strong colonial reek which calls for a complete change of this law.
The Epidemic Diseases Act was enacted to avoid an embargo being placed on ships coming from Indian ports, as had been decided at the 1897 Sanitary Conference of Venice, in lieu of the Bubonic plague outbreak. Thus the British, fearing a plunge in its overseas trade, enacted one of the most draconian pieces of legislation ever adopted in Colonial India.[vi] The act was always enacted to safeguard commercial interests and consideration of public health and well-being of the populace, if any, were incidental and subordinate.
Although the government has enacted this legislation several times to combat outbreak on several occasions like in 2009, it was enforced in Pune to battle the outbreak of swine flu, in 2015 in Chandigarh to counter the widespread dengue and malaria cases witnessed and again in 2018, to combat the cholera outbreak in Gujarat.[vii] But, this author strongly believes that India needs a law better than one which is draconian in its very origin and was never enacted to curb the spread of epidemics.
Is the act adequate?
The ‘International Covenant on Economic, Social and Cultural Rights’ (ICESCR) in Article 12 mentions that every individual has the right to enjoy the highest attainable standard of physical and mental health and the same is lacking in this archaic law. In an age of the Internet of Things where technology is at its pinnacle, there is a sheer lack of scientific temper in this 123-year-old enactment.
A multi-sectoral approach is clearly absent in the act. The existing provisions of the act are not enough to enable an amalgamation of the tertiary sector with the health personnel. Moreover, the very fact that the center needed to invoke the National Disaster Management Act,2005,[viii] to tackle COVID is itself indicative of the inadequacy of the Epidemic Diseases Act.
The first reform should be the addition of an accurate definition of not only an ‘epidemic’ but of all the terms pertinent to make it more holistic. An example of the same cane is the ‘Public Health Bill, 2017’[ix] which not only defined an ‘epidemic’ but numerous other relevant terms like an ‘outbreak’, ‘isolation’, ‘social distancing’ etc.
Another major issue with the act is that of the ambiguities in its text. For instance, Section 2 of the Epidemic Diseases Act mentions that the government can empower ‘any’ person to take ‘any’ action but doesn’t specify ‘who’ is to do ‘what’. Provision should rather be made to allow delegation of work to the primary health centers or the SSUs and DSUs [x] or any other health personnel and the word ‘any’ should be replaced with a more accurate and specific term for the efficient functioning of the act. Similarly, Section 2A which talks only of surveillance of ships, because only that mattered to the framers then, should be given a broader horizon and surveillance of road and air transport should also be included.
Another much necessary change is the introduction of a stage-wise plan to counter a communicable disease. The stage-wise plan present in the International Health Regulations, 2005 can be seen as a guide for the same.
Lastly, the focus should be given to the minuscule penalty imposed on an offender i.e. simple imprisonment of one month and a fine of Rs 200 which can be extendable to a fine of Rs 1000 and six-month-long imprisonment.[xi] The author firmly believes that for an agent or carrier of a lethal bio-hazard, this penalty is a pittance and a much significant and grave penalty is required.
The outbreak of COVID-19 has made us known of our limitations and our potential. Thus, it should be seen as an ‘awakening-call’ for reforms in the archaic law governing the outburst of an epidemic and the needful reforms should be introduced to forbid any and all legal anomalies from becoming an ‘Achilles’ heel’ in India’s haul to revival.
References: [i] Data available at https://www.worldometers.info/coronavirus/#countries (Last Accessed on 9th April 2020 at 11:55 PM) [ii] Saswati Chaudhuri,Nilanjan Ghosh & Biswajit Mandal, The Corona Chronicle: Between open world and closed economies, available at https://www.indiatoday.in/news-analysis/story/the-coronavirus-chronic-between-open-world-closed-economies-1663275-2020-04-04 (Last Accessed on 9th April 2020 at 11:59 PM) [iii] Kiran Kumbhar, Epidemic Diseases Act, India’s 123-Year-Old Law to Help Fight the Pandemic, available at https://science.thewire.in/health/epidemic-diseases-act-india-pandemic/ (Last Accessed on 11th April 2020 at 9:38 PM) [iv] Saurav Kumar Rai, available at https://thewire.in/history/colonialism-epidemic-diseases-act (Last Accessed on 11th April 2020 at 9:43 PM) [v] Bal Ram Nanda, GOKHALE, 1977, 1st ed.,p.105. [vi] David Arnold, SCIENCE, TECHNOLOGY AND MEDICINE IN COLONIAL INDIA, 2000, 1st ed., p.144. [vii] A 123-yr-old Act to combat coronavirus in India; experts say nothing wrong, available at https://www.livemint.com/news/india/a-123-yr-old-act-to-combat-coronavirus-in-india-experts-say-nothing-wrong-11584182501707.html (last accessed on 12th April,2020 at 2:10 PM) [viii] More information available at https://www.ndtv.com/india-news/coronavirus-centre-invokes-national-disaster-management-act-takes-control-of-covid-19-battle-in-stat-2200288 (last accessed on 12th April,2020 at 2:18 PM) [ix] The bill has not been tabled yet. A copy is available at https://www.prsindia.org/uploads/media/draft/Draft%20PHPCM%20of%20Epidemics,%20Bio-Terrorism%20and%20Disasters%20Bill,%202017.pdf (Last Accessed on 13th April at 1:52 PM) [x] State Surveillance Unit (SSU) and District Surveillance Unit (DSU) are established under the Integrated Surveillance Program of the Government of India, which aims at detecting and treating diseases. [xi] Punishment is pari passu Section 188 of IPC.
This post is written by Rajas Salpekar, interning with AmicusX.
(Images used for representative purpose only)