With an ill-drafted, four-section Act on Epidemics, is the Indian Legal framework ready to deal with a Pandemic?
The Epidemic Diseases Act, 1897 (hereinafter referred as the ‘Act’) of India is a law of colonial vintage. In the year 1896, Bombay was struck by a devastating Bubonic plague. It was transmitted through bacteria and very little was known about the disease or where it came from. To tackle such an untraceable disease and to restrict the movement and mass gathering of people so that its spread can be regulated, the British Government enacted this Act on 4th February 1897.
By exercising the powers provisioned under the Act, the colonial authorities searched the suspected plague cases in homes of the public and among passengers by segregations, evacuations and also by demolitions of the places which were infected.
The preamble of the Act states that it is enacted “for the better prevention of the spread of dangerous epidemic diseases”.
The Act consists of total four sections.
Section 2– It empowers the State Governments and Union Territories to take special measures and formulate regulations to prevent the outbreak of the dangerous epidemic disease if it satisfied that the State or any part thereof is threatened with the outbreak of such disease.
- If the State Government is satisfied that the ordinary provisions of the law are insufficient for the time being to contain the outbreak of the disease, it may take or empower any person to take such measure or temporary regulations, by public notice, which shall be observed by the public to prevent the outbreak.
- The State Government may also determine that in what manner and by whom the expenses incurred would be defrayed, if any.
- It may also prescribe regulations, without prejudice, for inspection of persons travelling by railway or otherwise and the segregation of suspected persons, of being infected with such disease, by the inspecting officer in hospitals or temporary accommodations.
Section 2A- It empowers the Central Government to prescribe regulations for the inspection of any ship or vessel which leaves or arrives at any port in India and the detention of such person as necessary to prevent the outbreak.
Section 3- This provision provides for penalties to such persons who disobeys any regulation or order as made under this Act. Such person shall be deemed to commit an offence under Section 188 of the Indian Penal Code, 1860 i.e. Disobedience to order duly promulgated by public servant.
Section 4- It provides legal protection to the implementing officers acting under this act from any suit or legal proceeding.
This Act was designed to merely put government machineries into action upon a considerable threat of an epidemic disease and not a code for establishing the roles and responsibilities of general public health systems.
The act was described as “one of the most draconian pieces of sanitary legislation ever adopted in colonial India” by David Arnold because it provides for physical examination and detention of the suspects, destruction of infected properties and banning of public gatherings for any purpose including even religious purposes.
Historian Pandurang Balkawade said- “To control the spread of the disease, special powers were needed and the British rulers enacted the law giving extraordinary powers to officials…..the way British officers and soldiers implemented the Act was brutal and inhuman at times”.
A strong backing of legislation is required to deal effectively with the epidemic currently being faced by the nation. The executive orders lack adequate powers which the legislation is imbibed with. Where other countries have detailed legislations to deal with the outbreak of such dangerous diseases, India only has a four-section ambiguous legislation.
For instance, England has the “Public Health (Control of Disease) Act, 1984”. It has specific delineated roles for authorities to prevent the diseases. This Act provides for notification of an infectious disease, responsibilities of healthcare workers in identifying the contagious individuals and a clear hierarchical chain in which the identification has to be reported. It provides for measures to be taken, responsibilities of local authorities and national authorities, the pre-planned format of operation of the responding authorities, etc. These provisions reduce the scope of confusion and jurisdictional issues at the time of crisis.
Another example is “The Public Health Services Act, 1944” of the United States. It provides for an administrative structure through which the public health emergency shall be dealt with. It mentions clear separation of the roles and responsibilities of the Centre and States. Further, the Act very-well anticipates the need for additional manpower during a nationwide epidemic by creating a reserve corps to supplement the commissioned corps on a short notice.
To start with the defects in The Epidemic Diseases Act of India, it even fails to define when and how a disease shall be declared as an epidemic. As far as an epidemic is considered, India’s one-page, four-section act is incapable of providing any adequate legislative backing to even a minor public health emergency. Instead of anticipating and pre-planning the administrative framework, the Act leaves all the power and responsibilities with the State Governments to make regulations and take measures. There should be a strong and systematic procedure in the Act, so that the immediate measures could be taken rather than delaying the process by the States struggling to come up with administrative and health protocols on the fly whilst in the midst of a crisis. This would result in every State differing in its strategy and may even result in abuse of power. There is no provision that the local or state level health or other authorities may follow in case of an emergency. The Epidemic Diseases Act of India is a pre-independence act and therefore fails to provide for any clarity upon the responsibility of different states and the union upon controlling of the nationwide epidemic.
However, many Constitution experts say that if the government is satisfied that these laws are good enough to fit in the existing circumstances, then there is nothing wrong. There are many colonial-era laws that are retained by the government like Indian Penal Code, Famine Act, etc. If it believes that a colonial-era would help in containing the outbreak of the epidemic then it is for the government to decide on the relevance of this law.
At present, the rising cases of COVID-19 in India have led to nationwide lockdown creating a panic among people of the nation. The government can learn from the past and current scenarios, and make an effective legislation in the interest of public health security to fight against the outbreak of any dangerous disease. It shall lay down the administrative structure clearly by setting out the powers and responsibilities of the authorities at the local level right up to the national level. The law shall be comprehensive, strong and humane, also keeping in mind the liberty, privacy and dignity of the patients.