ABSTRACT:

Many states in India have been invoked various provisions of the Epidemic Diseases Act 1897 to control communicable diseases. The Act was reviewed with reference to its relevance in the current context and other relevant Acts and legislations at the national and international levels. The Epidemic Diseases Act has major limitations as it is outdated, merely regulatory and not rights based and lacks a focus of the people. There is a need for an actionable, comprehensive and relevant legal provisions for the control of outbreaks in India

INTRODUCTION:

India has witnessed may large outbreaks of infectious diseases in the recent past. The outbreak of cholera epidemic due to O139 strain in 1992, plague in 1994, the large scale spread of dengue fever and chikunguniya were some which cause widespread havoc. The outbreaks caused by Nipah, Crimean Congo haemorrhagic fever also posed a threat to the country’s public heath in the last decade. In 2020, as the Novel Coronavirus Disease infects Indians too.

Transport was the key culprit in the pandemics of our past. Spanish flu entered India through Bombay, most likely on a troop ship returning from the First World War in Europe and then spread across the country. COVID-19 has reached India through international travel as well.

COVID-19 has no vaccine or treatment. It is a virus whose spread is faster than anything. As medical sciences work round the clock to develop vaccine and government grapple with tough decisions, the responsibility of prevention extends equally to society. Social distancing and hygiene are the most important things but given the high density of population in many cities in India and the difficulty that many people are likely to face efforts to remain socially isolated. According to reports the arears with higher population densities in India during the 1918 influenza pandemic experienced greater loss in population. India has many such locations today.

Legal frameworks are important during emergency situations as they define the scope of the government responses to public health emergencies and also the duties and rights of citizens. In recent years many states have been invoked various provisions in the Epidemic Diseases Act,1897. It is important to evaluate the Act, its relevance in the current situation and whether it has kept up with the recent global development in disease control and right perspective.

HISTORY OF THE EPIDEMIC ACT:

Around September 1896, one case of Bubonic Plague was detected on Mandvi(then in Bombay Presidency) now in Gujarat. Bombay Presidency was even then one of the most densely populated areas due to rapid growth of commerce there. Plague, infectious fever caused by Yersinia pestis, a bacterium transmitted from rodents to humans by the bite of infected fleas. The plague epidemic spread rapidly due to constant inflow of population; legend has it that there were almost 1900 reported deaths per week during the epidemic. India, then under the rule of Queen and British Parliament, had to act wisely to prevent the plague from spreading to rest of India. It was then that the Epidemic Act 1897, was enacted by the British Parliament to curb in the spread of plague.

Plague was the cause of some most devastating epidemics in history. It was the disease behind the Black Death of the 14th century, when as much as one-third of Europe’s population died. Huge pandemic also arose in Asia in the late 19th and early 20th centuries, eventually spreading around the world and causing millions of deaths. Today, thanks to strict public health measures and modern antibiotics, plague no longer strikes great numbers of people, nor is it as deadly for those whom it strikes. It still persists in some parts of the world where large population of wild or domestic rodents harbour the fleas and occasionally pass them to humans.

PROVISIONS OF THE EPIDEMIC DISEASES ACT:

The Act, which consists of four sections, aims to provide “for the better prevention of the spread of Dangerous Epidemic Diseases.”

Section 2 empowers state governments/UTs to take special measures and formulate regulations for containing the outbreak. It reads:

“Power to take special measures and prescribe regulations as to dangerous epidemic disease”-

1.When at any time the State Government is satisfied that the State or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease, the State Government, if it thinks that the ordinary provisions of the law for the time being in force are insufficient for the purpose, may 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 or by any person or class of persons as it shall deem necessary to prevent the outbreak of such disease or the spread thereof, and may determine in what manner and by whom any expenses incurred shall be defrayed.

2.In particular and without prejudice to the generality of the foregoing provisions, the State Government may take measures and prescribe regulations for-

(b)  the inspection 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.

Section 3 provides penalties for disobeying any regulation or order made under the Act. These are according to section 188 of the Indian Penal Code.   

Section 4 gives legal protection to the implementing officers acting under the Act.

EPIDEMIC DISEASES (AMENDMENT) ORDINANCE,2020:

Law is a means to regulate human behaviour and to protect society and individual from any type of civil wrong, offences and other illegal & unlawful activities. Since the Epidemic Diseases Act, 1987 is 123 years old law, it doesn’t fulfil the needs of the hour because with the passage of time, the society and needs of the society have been changed. The Epidemic Diseases Act, 1897 is absurd and ineffective. The legislation is a testament of lawmakers shirking their responsibility to make appropriate laws on the subject. The archaic law also fails to counter the problems of the contemporary world. Hence it was the need of the hour to amend the 123 years old and dead law according to our present needs.

The Constitution of India is the sole and paramount document which empowers the Parliament and the state legislative assemblies to make or amend the law according to the needs. Entry 97 of List I of Schedule VII deals with matters not enumerated in List II or List III and it appears that current pandemic falls under this category. Entry 29 of List III (List III of Schedule VII empowers both the Parliament and the State legislative assemblies to enact the law matters enumerated in List III) deals with “prevention of the extension from one state to another of infectious or contagious diseases.” The “public health and sanitation; hospital and dispensaries” is a state subject under Entry 6 List II. Article 123 of the Constitution of India empowers the President to promulgate the ordinance on the subjects on which Parliament can enact the law.

The President of India promulgated The Epidemic Diseases (Amendment) Ordinance,2020 on 22 April 2020. The Ordinance amends the 123 years old law. The Ordinance amends the Act to include protections for healthcare personnel combatting epidemic diseases and expands the powers of the central government to prevent the spread of such diseases. The Ordinance of 2020  add Sections 1A, 2B and 3A to protect health workers from acts of violence and expansion of Section 2A to regulate movement of all vehicles and persons.

The following changes have been made in the Act:

Section 1A defines the following definitions-

Healthcare service personnel as a person who is at risk of contracting the epidemic disease while carrying out duties related to the epidemic. 

They include:

Public and clinical healthcare providers such as doctors and nurses any person empowered under the Act to take measures to prevent the outbreak of the disease, and other persons designated as such by the state government. 

An ‘act of violence’ includes any of the following acts committed against a healthcare service personnel:

  • Harassment impacting living or working conditions harm, injury, hurt, or danger to life obstruction in discharge of his duties loss or damage to the property or documents of the healthcare service personnel. 

Property is defined to include:

  • Clinical establishment:
    • quarantine facility
    •  mobile medical unit and
    •  other property in which a healthcare service personnel has direct interest, in relation to the epidemic.

Section 2A amends the last provision and empowers the Central Government to regulate movement of all vehicles and persons. It says that the central government may regulate:

  • the inspection of any ship or vessel leaving or arriving at any port, and the detention of any person intending to travel from the port, during an outbreak.  The Ordinance expands the powers of the central government to regulate the inspection of any bus, train, goods vehicle, ship, vessel, or aircraft leaving or arriving at any land port, port or aerodrome.  Further, the central government may regulate the detention of any person intending to travel by these means.

Section 2B has been added by the amendment and it says that no person shall indulge in any act of violence against a healthcare service personnel or cause any damage or loss to any property during an epidemic.

The Ordinance 2020 inserts Section 3(2) & 3(3). These sub-sections say that no person can:

  • Commit or abet the commission of an act of violence against a healthcare service personnel, or
  • abet or cause damage or loss to any property during an epidemic. 

Contravention of this provision is punishable with imprisonment between three months and five years, and a fine between Rs 50,000 and two lakh rupees.  This offence may be compounded by the victim with the permission of the Court.  If an act of violence against a healthcare service personnel causes grievous harm, the person committing the offence will be punishable with imprisonment between six months and seven years, and a fine between one lakh rupees and five lakh rupees.  

Section 3A declares the above-said offences as cognizable and non-bailable. It further says that Cases registered under the Ordinance will be investigated by a police officer not below the rank of Inspector.  The investigation must be completed within 30 days from the date of registration of the First Information Report.

The inquiry or trial should be concluded within one year.  If it is not concluded within this time period, the Judge must record the reasons for the delay and extend the time period.  However, the time period may not be extended for more than six months at a time.
Section 3C says that when prosecuting a person for causing grievous harm to a healthcare service personnel, the Court shall presume that person is guilty of the offence, unless the contrary is proved.

Section 3B of the Act makes the offence committed u/s 3(2) , with the permission of the court, compoundable.

Section 3E says that Persons convicted of offences under the Ordinance will also be liable to pay a compensation to the healthcare service personnel whom they have hurt. Such compensation will be determined by the Court.  In the case of damage or loss of property, the compensation payable to the victim will be twice the amount of the fair market value of the damaged or lost property, as determined by the Court.  If the convicted person fails to pay the compensation, the amount will be recovered as an arrear of land revenue under the Revenue Recovery Act, 1890.
Though the Act has been amended but still the amendment doesn’t fill the lacunae of the Act. For e.g.

(i)The object of the Epidemic Act is more for prevention of the spread of the disease not to curb or eradicate the disease which has already started to spread. The Act does not define the term epidemic or disease

(ii)Though the name of the law is the Epidemic Diseases Act but it doesn’t define the meaning of epidemic.

In relatively recent times, efforts were made to fill in the lacunae created by advancement in health science. In 2017, the Public Health (Prevention, Control and Management of Epidemics, Bio-Terrorism and Disasters) Bill was drafted. The National Centre for Disease Control (NCDC) and the Directorate General of Health Services (DGHS) jointly prepared this Bill, citing the need to empower government bodies during health emergencies. Unfortunately this bill has not been passed yet.

CHALLENGE TO GUIDELINE ISSUED UNDER THE ACT:

During covid-19 pandemic the Central Government and the State Government have issued various guidelines & regulations to control the pandemic and to protect the healthcare personnel. These guidelines & regulations have been issued in exercise of power conferred u/s 2 of the Act. On 13th June 2020,to fight against covid-19 pandemic, guidelines were issued by Delhi Disaster Management Authority, had issued The Delhi Epidemic Diseases, (Management of COVID-19) Regulations, 2020 through a notification. As per Regulation 3(g) of the said regulation issued by the Lieutenant Governor of Delhi , officers of the rank of Sub Inspector and above of Delhi Police have been authorized and empowered to impose fine of Rs.500 for the first time and a further fine of Rs. 1000/- for the repeated offence, respectively for violating the directives/guidelines pertaining to the following:-

  • Observation of quarantine rules.
  • Maintaining of social distancing.
  • Wearing of Face mask/cover in all public places/workplaces.
  • Prohibition of spitting in public places.
  • Prohibition on the consumption of paan, gutka, tobacco etc. in public places.

The contention of the applicant is that The Regulation 3(g) of the Delhi Epidemic Diseases, Management of Covid-19 Regulations, 2020, has de facto designated a complainant/ an investigation officer as a judge which is a violation of the principles of natural justice. Power to inflict punishment is conferred on judges and not on police officers and hence such regulation is violative of the principle of Audi Alteram Partem which is a principle of fundamental justice as an accused person would not be able to justify his part.

The petition is pending in Delhi High Court before the bench of Chief Justice DN Patel and Justice Prateek Jalan.

RECOMMENDATIONS:

In the current context what we require the most is a strong legal framework that will not only provide the powers of government but also defines the duties, obligations of government and government role in preventing diseases. There is a need for an integrated, comprehensive, actionable and relevant legal provision for the control of disease outbreaks in India.

Such a framework should be based on rights and people-oriented. There is also a need for a system that can prove helpful in circulating the information at ground level.

CONCLUSION:

Epidemic Diseases Act, 1897 which is 123 years old legislation was enacted to prevent epidemics but now it seems to fail to keep up with the changing needs of society. Many times the act has been implemented to control the spread of diseases but now the world demands a powerful law to deal with pandemic like COVID-19. The Act is a very crisp and short act; then people travelled through seaways and often there were chances of spreading infection. Today we have new epidemiological techniques to deal with outbreaks so continuing with the old makes no sense.

Also the act become outdated and there is no uniformity  of law as different provisions are followed by different states and so the need of the hour  is a comprehensive codified public oriented health code.

REFERENCES:

URL:

 BOOKS:

  • The Great Pandemics: Duration and impacts with Eyewitness Accounts  
  • A Journal of the Plague Year -Daniel Defoe(1722)
  • The Plague –  Albert Camus
  • Epidemics and History -Sheldon Watts
  • Epidemics and Society: From the black death to the present- Frank M. Snowden
  • Viruses, Plagues and History- Michael B.A. Oldstone

Author:

Shalabh Deep Goyal

Kratika Kushwah

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