COVID-19: Are India's Laws Sufficient to Fight the Pandemic?

Introduction:

With the whole world struggling to combat COVID-19, a pandemic that is yet to show its worst stage, economies are taking a nosedive. The crisis, according to the UN secretary Antonio Guterres, is the most challenging one since the Second World War. Legal Frameworks of many countries are not even prepared for a situation like this. In India, it becomes especially difficult to control the spread of the virus due to its huge population, understaffed healthcare system, and a large number of people dwelling in slums where the concept of social distancing doesn't even exist. Our Government is taking steps like travel bans, lockdowns, and rigorous testing to flatten the curve of the disease. However, does our country's legal system accommodate for these steps taken by the government, and are our laws sufficient to face the crisis?


Laws enforcing Social Distancing and Lockdown Measures at National Level:

At the national level, the law aiding the government to deal with the virus and to make provisions regarding the same is the Disaster Management Act, 2005 (hereafter, the DMA). It was enacted to efficiently manage disasters (natural or man-made) which would otherwise cause significant damage to lives and suffering to people. Although public health comes under the State list[1] in the Schedule 7 of the Constitution, and Centre can only play an advisory role, the aforementioned Act gives power of overriding state government orders to the centre through its Section 10[2] .

The government declared the pandemic as a “Notified Disaster” under Section 2(d) of the Act. Under the Section 6(2)(1) of the Act, the government called for nationwide lockdowns. According to the consolidated guidelines[3] (given under Section 10 of DMA) of the Ministry of Home Affairs, if anyone tries to defy lockdown measures, he/she will be penalized under Sections 51-60 of the Act, which deal with punishments for obstructing the work of a public servant, false claims, misappropriation of money and materials, false warning, etc. Along with this Act, the Guidelines on Management of Biological Disasters[4], drafted by the National Disaster Management Authority in 2008, contains elaborate steps for dealing effectively with a biological disaster. Also, the National Disaster Management Plan [5], created in 2019, helps to improve the capacity to recover from a disaster, and to implement a development strategy that is disaster resilient.

However, the DMA is not effective to deal with the current situation. It was enacted keeping in mind a natural disaster, not a biological or health disaster, so it does not contain provisions to control a communicable disease. Problems that are occurring during the current crisis are much wider in scope than that are listed in the act. Another issue is that under Section 60 of the Act, only then will the case be considered, when the person filing a complaint gives a notice of the alleged offence and his intention to file a complaint before an authority in not less than 30 days or before. This would become a roadblock on the way to quick action, and might also result in worsening the crisis.


The Archaic Epidemic Diseases Act, 1897- sufficient to combat the disease at State Level?

The above-mentioned laws are further supplemented by the Epidemic Diseases Act, 1897 (hereafter, the EDA). Its name might suggest that it is the perfect law for the current scenario, unlike the DMA. Howbeit, it is far from perfect, because it was enacted hurriedly at the end of the 19th century by the British Government, to prevent the spread of the Bubonic Plague in Bombay. The Act does not even contain a proper definition as to what should be considered as an “Epidemic” under it. Even decades after we got our freedom, the law was never repealed. It helped the state governments to deal with infectious diseases like Cholera, Dengue. But never before has the EDA dealt with such a huge crisis.

The Act is a small one, and contains only 4 sections. Section 2 of the Act[6] allows the government to inspect the people travelling in a ship or vessel (since there was no air travel at the time it was enacted), and to segregate them in a hospital, if found to be infected by the disease. Section 3 of the Act states that if a person disobeys any regulation made under this act, he/she shall be punished under Section 188 of the Indian Penal Code[7]. Section 4 states that no legal action arises against any act done by a person in good faith under this Act. This might result in the police misusing the law to initiate violence against the public under the pretext of enforcing the lockdown. This misuse would not be something new. In 1897, for instance, Bal Gangadhar Tilak was imprisoned under this Act, for the coverage of his newspaper on the plague[8]. According to scholars Jaya Prasad Tripathi, Rashmi Kashyap, and Binod K Petro [9], EDA has a vague language. It remains silent on the legal framework for the distribution of medicines and vaccines. It does not mention any ethical perspectives during the response to an epidemic. Compared to this Act, the DMA is a lot more descriptive and clear as to what its scope and functions are.

The EDA was implemented in Karnataka for the first time, on March 11, 2020. Other states soon followed the lead. The state governments are creating regulations and guidelines under this Act, but they are not verifying if the regulations made are under its ambit, and it is resulting in them acting Ultra Vires[10]. No matter how good their intention is behind the regulations, if their actions are not under the scope of EDA, they would have no legal backing for it.

The Ministry of Health and Family Welfare tried to replace the EDA by the Public Health (Prevention, control, and Management of Epidemics, Bio-terrorisms, and Disasters) Bill[11], in 2017. It empowered the municipal bodies to take care of the public during circumstances that the name of the bill suggests. Since it was recently drafted, it would've served a better purpose to control the modern-day disasters, unlike the 123 year-old law that we are left with for dealing with the pandemic currently. Unfortunately, the bill was never passed by the Parliament.


Quarantine Law Enforcement and Penalties:

The IPC and CrPC contain sections to help the government enforce the lockdown. Section 144 of CrPC prevents the unlawful assembly of 4 or more people in an area. It is being used by the state governments to make sure people do not gather in groups so as to prevent the spread of the virus. Section 133, CrPC states that a Magistrate can remove any unlawful obstruction or nuisance immediately, on receiving a report or evidence. The Supreme Court of India, in the case of Municipal Council Ratlam v. Vardhichand[12], stated that Section 133 of CrPC is linked with Section 188 and 268 of the IPC. If someone disobeys the instructions of a public servant, they shall be penalized under Section 188, IPC. Section 268, IPC, penalizes a person causing public nuisance. Section 269 and 270 state that a person can be punished if he/she negligently, or malignantly, commits an act that could result in the spread of a life-threatening disease. Section 271, IPC, deals with a person disobeying the quarantine rule. No remedy would be provided to any person penalized under these laws, because at a time when the whole world is in the state of an emergency, people breaking the quarantine rule and trying to spread the disease cannot be subject to an exception.


Conclusion:

In light of the above, it can be said that the current laws are not enough to control the spread of the virus. The DMA and EDA cannot be allowed because they can be subject to absurd interpretations, and there are absolutely no laws that talk about a public health emergency. Since no new legislation can be passed due to the time constraints, for the time being, the president should pass ordinances under Article 123 of the Constitution for strengthening the laws. With right steps taken by the government, and a population that understands the gravity of the situation, we shall surely come out of the crisis victorious.


Footnotes: [1] INDIA CONST. art. 246. [2] Disaster Management Act, 2005, § 10, No. 53, Acts of Parliament, 2005, (India). [3] Ministry of Home Affairs, Office Memorandum No. 40-3/2020-DM-1(A) (Apr. 15, 2020), https://mha.gov.in/sites/default/files/MHA%20order%20dt%2015.04.2020%2C%20with%20Revised%20Consolidated%20Guidelines_compressed%20%283%29.pdf [4] National Disaster Management Authority, National Disaster Management Guidelines-Management of Biological Disasters, ISBN 978-81-906483-6-3, July 2008, New Delhi. [5] National Disaster Management Authority, National Disaster Management Plan, November 2019, New Delhi. [6] Epidemic Diseases Act, 1897, § 2, Act No. 3 of 1897, (India). [7] Indian Penal Code, 1860, § 188, Act No. 45 of 1860, (India). [8] Queen Empress v. Bal Gangadhar Tilak & Keshav Mahadev Bal (1897) ILR 22 Bom 112 (Bombay High Court) 145. [9] Binod K. Patro, Jaya Prasad Tripathy, Rashmi Kashyap, Epidemic Diseases Act 1897, India: Whether sufficient to address current challenges?, 18 Journal of Mahatma Gandhi Institute of Medical Sciences 109 (2013). [10] Ultra vires, Black’s Law Dictionary (9th ed. 2009). [11] The Public Health (Prevention, Control and Management of Epidemics, Bio-Terrorism and Disasters) Bill, 2017, No. T-18014/3/2004/PH, (Feb 13, 2017). [12] Municipal Council Ratlam v. Vardhichand, (1980) 4 SCC 162.

Submitted by,

Aarushi Srivastava,

Rajiv Gandhi National University of Law, Patiala.

© 2020 by AmicusX