THE EPIDEMIC DISEASE ACT, 1897 – ANALYSIS VIS-À-VIS CORONAVIRUS BY SIMRAN SABHARWAL

INTRODUCTION

This article focuses on whether the Epidemic Diseases Act,1897 is sufficient to tackle the current pandemic or future health emergencies.

India is the most populous country in the whole world with over 1.4 Billion people and fortunately, the least affected by the virus as compared to other developed countries like U.S.A, Italy, Germany, U.K, Spain, France, China, but the cases are increasing day by day.

The pandemic COVID-19 has revealed conspicuous weaknesses in domestic legislation in India. Along with some other regulations, the Centre imposed the “Epidemic Disease Act,1897” to curb novel coronavirus. The article will review the act and discuss its shortcoming and amendments required. The coronavirus outbreak was noticed first in China in December 2019. China informed the World Health Organisation when it noticed hundreds of cases related to pneumonia in Wuhan city. The disease transmitted to more cities of China and simultaneous in the world. Later it was declared as a pandemic. The virus has been given various names including SARS-CoV-2, but currently, it is also called COVID-19.

The Act came into effect on 4th February 1897. This Act, which contains merely four sections, is indeed one of the shortest legislation in India.Section 1 talks about the title and scope of the act. Section 2 mentions the laws that the centre and the state have to be enforced to stop the transmission of the disease. Section 3 states the penalty for disobeying any law or order in harmony to Section 188 of the Indian Penal Code. Section 4 mentions that no complaint or other action will be lodged against the person who is acting in good faith under this Act.[1]

The act is more than 120 years old but very useful in the current times. The Act is enforced in India which is helping to combat the epidemic. The law has many drawbacks but should be adjusted and modified according to the current pandemic. This needs to be done in an urgent manner. The possible solutions include holding a virtual conference and passing the bill or it can also be done under the emergency clause.

EPIDEMIC ACT AND CORONAVIRUS

The Indian states and union territories including Punjab, Gujarat, Maharashtra etc. have issued press-releases to impose the Epidemics Act,1897.[2] The states cannot control the widespread disease even after isolating people because of the unclear provisions of the Act. There exists no law that can direct the government in a specified manner to curb the spread.

The Act is continually lagging behind in the enforcement of the guidelines issued by these organisations. There are many laws in the country that are passed by the parliament on public health that are incorporated in one statute. It is important for the government to amend the age-old law so that the country is prepared for any kind of epidemic in the future. The National Health Bill 2009 is also pending for implementation.[3] The National Health Act, if introduced will have a very beneficial impact at the time of epidemic to take necessary effective steps. The legislature should understand the issues face and amend it accordingly.

With today’s COVID-19 crisis, our legislature should consider and understand the issues faced, and pass a new and successful legislation accordingly.

PROVISIONS OF INDIAN PENAL CODE IN EPIDEMIC

Besides section 188, certain other IPC provisions relating to public health and safety may also be attracted during an epidemic disease outbreak. As the preamble of the Epidemic Diseases Act, 1897 says, it is to accommodate the better counteraction of the spread of Dangerous Epidemic Diseases, it empowers both the central as well as the state government to take up measures to forestall the spread of any epidemic within its authority.

  • Section 269 of the IPC[4] prescribes punishment for negligent acts that may spread infection of any disease, thereby endangering human life, punishable by imprisonment that may stretch to six months and/or fine.
  • Section 270[5] is, however, a more serious offense than the one referred to in Section 269. It imposes punishment for malignant actions that could spread any life-threatening illness. Penalty under this section can amount to two years in prison and/or in fine.
  • IPC section 271[6] prescribes punishments for disobeying the quarantine law. These punishments can apply to six months in jail and/or in fine.

The implementation of the above IPC provisions can be seen in the order passed by the Government of Kerala imposing lockdown in the State on March 23,2020.[7] The orders passed by the state of Haryana, Maharashtra, Telangana etc. state that disobeying of such an order will lead to punishment under the Act and the section 188 of the IPC.

Currently, only FIR is been lodged against the violators or for example, singer for negligence and disobedience of an order passed by a public servant under Section 188 as well as Section 269, 270 and 271 of the IPC.[8]
In Maharashtra, 141 cases have been registered under Section 188 of the Indian Penal Code.[9]

Also, it is imperative to take note of that under Section 188, IPC, an intention to cause harm is not relevant as mere knowledge of the order gives sufficient cause for liability of committing the offence. Although an offence under Section 188, IPC is cognisable and bailable, courts won’t take cognisance by just documenting a FIR. A complaint must be recorded by the concerned police officer under Section 195 of the Code of Criminal Procedure, 1973. Non-compliance of the provisions of Section 195 of CrPC may lead to the proceedings being quashed as held by the Apex Court in the case of C Muniappan and Ors v. State of Tamil Nadu.

In a judgment passed by the Orissa High Court in 1963 on account of J. Choudhary v The State, AIR 1963 Ori 216. the question before the High Court was whether the refusal of the doctor to get himself vaccinated against cholera in accordance with the regulations passed by the State Government would be culpable under Section 3 of the Act. The Orissa High Court responded to the said question in the agreed and held that the intention of the said doctor was irrelevant, his disobedience in itself was punishable under the Act.

Section 4 of the said act gives assurance to local officials from lawful activity while acting in good faith under the arrangements of the Act. While talking about the ambit of Section 4, the Calcutta High Court in 1904 on account of Ram Lall Mistry v R.T. Greer, (1904) ILR 31 Cal 829. held that an omission to pay compensation as prescribed under the regulations passed under the Act would not be protected under Section 4.

MAJOR LIMITATIONS IN THE ACT

The Epidemic Diseases Act is an act which is more than 120 years old. This act was passed by the British Parliament in the Bombay Presidency. The real motive may be to arrest people who are in public gatherings. This act would have been misused. The objective of this act was to prevent the spread of the virus and never to eliminate the disease altogether. The Act does not provide the government with clear steps or instructions to follow at the time of an outbreak. The act does not elaborate the word “lethal” or “contagious disease”.  The law is ambiguous on the words like dangerous which makes the outbreak more severe.

There are various issues in the Act that needs to be addressed now. The act needs to mention provision relating to the air travel, migration and industrialisation. These factors have led to a shift and spread of infectious diseases.For instance, the Act is too much ship-oriented but does not talk about the air travel. The air travel is on the peak in the current times and the Act has not even mentioned it. The law does not make guidelines for the protection of human rights in an emergency response of the outbreak. It is important because there may be little to no legal concern regarding human rights protection during emergency periods.

The Act is vague on the part of how the government will administer the vaccines and medicines. As the act is silent on this issue, the general public cannot hold the government responsible for any mishappening. There lies no procedure to file a suit against the government. This act also does not define the ambit of powers of the government. The Epidemic diseases Act has not been under any judicial review.

RECENT AMENDMENT

The government amended a small yet a vital part on 22nd April 2020.[10] The authorities amended the section 2 and section 3 of the old law. The government decided to amend the law to protect the warriors of coronavirus. The Union Cabinet approved the ordinance to protect the healthcare workers, doctors, nurses.[11]Some of the amendments of the ordinance are as follows –

  • The amendment now violates acts of aggression against the medical workers as cognizable and non bailable.
  • If anyone is seen to instigate violence then he/she will be charged with imprisonment and fine of Rs 50,000 to 2,00,000 lakhs.
  • If a person causes serious harm to health worker, he will be punished for six months to seven years and a fine of 1 lakh to 5 lakhs.
  • Also, the violator will also be asked to pay compensation to victim for his belongings with double the market value.

The new changes were required to stop the violence on life saviours. They will be able to serve the country with a little less fear. However, there are other aspects that need amendment too.

WAY FORWARD

The country needs to revamp the old legislation and adopt a more systematic approach. It should also state the disadvantages of the 1897 act and regulate a new one. There have been several attempts made in the past by the legislation. In the year 2017, the Public health Bill was introduced which mentioned about tracking epidemics, activities related to bio terrorism and aimed at revising the current approach.[12] The bill would have been beneficial in 2020. It would have repealed the 1897 Act. Though the current situation is opposite and the bill introduced by ministry of law was never enacted.[13]

The government planned to enact a National Disaster Management Plan,2019 with the guidelines of biological disaster of 2008 that is proving to be helpful now. Clearly substituting one law for another does not solve the problem. Without a robust monitoring network, effective public health programs, and epidemiologists offering operational knowledge and policy support, attempts to contain infectious outbreaks cannot succeed.

CONCLUSION

Historian David Arnold describes the Act as “one of the most draconian pieces of sanitary legislation ever adopted in colonial India.”

The Modi government is using two law mainly to curb the spread i.e. the Disaster Management Act, 2005 and the 1897 act. One of them needs to be changed and amended suiting the current times. This will go a long run. The viruses have existed always, we need a stronger framework to fight them. The global health emergency COVID-19 gives the Union government a solid opportunity to amend the legislation of the country. In order to avoid and monitor the entry, dissemination and existence of any infectious disease in India, it is important to improve the legal frameworks. The Act has considerable loopholes which hinder the process of stopping the spread of the virus. This will eventually lead to re- appearance of the disease and transform the public health. We urgently require a framework that should be adopted keeping in mind the pandemic. A legislation in congruence with the public health system is the need of the hour. The minor as well as major laws should be synchronised with the effective legislation.

Although, the Government took steps in light of the lacunas by introducing a bill in 2017, ‘Public Health (Prevention, Control, and Management of Epidemics, Bio-terrorism and Disasters) Bill’ which was supposed to repeal the current Act. The said bill is yet to see the face of the daylight. The Indian Government needs to bring a comprehensive legislation in terms with the modern-day realities and having learnt a bitter lesson from the COVID-19 should also focus on serious measures to be taken in the event of such crisis. There has to be amendments if not a complete overhaul of the Act for the above-mentioned reasons and the changing public health priorities.

[1] Epidemic Diseases Act, 1897.

[2] Home Ministry issues SOP for movement of Indian Nationals’ NEWS SERVICES DIVISION, ALL INDIA RADIO (MAY 06,2020), https://www.india.gov.in/news_lists?a878774607

[3] Pushkraj Deshpande, The Epidemic Act of India, 1897, MONDAQ, (May 06,2020)                  https://www.mondaq.com/india/government-measures/928706/the-epidemic-act-of-india-1897-an-analysis-vis-vis-the-covid-19-pandemic.

[4] Section 269, Indian Penal Code, 1860.

[5] Section 270, Indian Penal Code, 1860.

[6] Section 271, Indian Penal Code, 1860.

[7] Government of Kerala, General Administration Department, KERALA GOVERNMENT (March 23,2020), https://kerala.gov.in/documents/10180/172d9bbc-b89d-4a56-b1bf-6f3a61221d75.

[8]Singer Kanika Kapoor, who tested positive for coronavirus, booked for negligence’  ECONOMIC TIMES (March 21,2020) https://economictimes.indiatimes.com/news/politics-and-nation/singer-kanika-kapoor-who-tested-postive-for-coronavirus-booked-for-negligence/articleshow/74741688.cms/

[9] ‘Police registers 144 cases under Section 188’ MUMBAI MIRROR, (March 25,2020), https://mumbaimirror.indiatimes.com/coronavirus/news/police-registers-178-cases-under-ipc-section-188-for-violation-of-prohibitory-orders/articleshow/74816859.cms?.

[10] Tapesh Kumar Singh, ‘A Critique on the Epidemic Diseases (Amendment) Ordinance, 2020) LIVE LAW, (April 27,2020) https://www.livelaw.in/columns/a-critique-on-the-epidemic-diseases-amendment-ordinance-2020-155819.

[11] Ibid

[12] Tushar Agarwal, ‘Epidemic Diseases Act,1897’ MODERN DIPLOMACY, (April 23, 2020),https://moderndiplomacy.eu/2020/04/23/epidemic-disease-act-1897-whether-sufficient-to-combat-deadly-coronavirus-in-india/.

[13] Ibid

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