INVOKING THE EPIDEMIC DISEASES ACT, 1897 IN LIGHT OF THE EPIDEMIC DISEASES (AMENDMENT) ORDINANCE, 2020

Dhruv Nyayadhish

Harshita Palrecha

 

ABSTRACT

 

The outbreak of the novel coronavirus demanded the invokement of the epidemic diseases act to combat the crises and provide a legal substance in enforcing rules and regulations. In times of such despair, the Epidemic diseases act, an act legislated in the pre-constitutional era came to the rescue. This paper analyses the provisions of the act and pitfalls faced in light of new challenges and the need to reform the act by inserting new provisions to better capture the modern-day challenges. This paper also deals with the Epidemic Diseases (amendment) ordinance, 2020 which received the assent of the president on April 23rd, 2020 which provided for stricter punishments for attacks against health workers, increased compensation, to make the offences cognizable and non bailable among other things. This article seeks to establish whether the act and in addition to the new amendment is sufficient to combat current and future crises of similar nature to the novel corona virus.

 

I.          INTRODUCTION

The onset of a new emerging decade of 2020 comes up with its own set of new challenges but the same old techniques to resolve it. The current challenge emerges from a devastating pandemic of ‘Severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2)’ or known as the Covid-19 or the Coronavirus.

Since the time of history, outbreaks have devastated mankind. Changing patterns of civilization has exposed us to a range of diseases spreading over the community. Over the time, the world has witnessed the most deadly pandemics from the Antonine Plague to the Spanish flu. The spread of the virus back in those days was widespread but nothing like today.

The surgein global trade, travel and accessibility has created new opportunities for human and animal interactions that sped up such epidemics. Diseases like Malaria, tuberculosis, leprosy, smallpox, and others first appeared during these early years.[1]

From a legal perspective the primary act which seeks its invokement, is the colonial era act, all of 123 years old, being the Epidemic Diseases Act of 1897 (herein referred to as the “Act”).

The Act although purposeful was initially invoked by the British colonial Government was said to have been deceitfully used the Act to imprison freedom fighters. The act has been promisingly used by India as a weapon to fight the novel virus and rightly so. While the Central Government’s powers are limited under the Act, it is the unity of various states in the country that has brought the Act in the forefront.

After countless acts of violence against medical and health care personals the Union Cabinet approved promulgation of an Ordinance to amend the Epidemic Diseases Act, 1897 to protect healthcare service personnel and their property including living/working premises during epidemics. This amendment seeks to revive and reform the archeological nature of the Epidemic Diseases Act 1897 and provide it legal substance to enable it to tackle the current ongoing pandemic.

 

 

II.          WHAT IS AN EPIDEMIC DISEASE?

The entire world has had a long drawn history of epidemic diseases causing widespread deaths, tensions and long term health safety impact among the countries. As pointed out by the World Health Organization in its report, “Epidemics are sparked either by the re-emergence of pathogens that have been familiar for a long time, but now threaten new, immunologically vulnerable populations, or are newly-emerging ones. They come in a daunting array of species of bacteria, viruses, fungi and parasites. Some are borne in contaminated water or food; others are carried in the air we breathe and by human touch.”[2]

An epidemic is defined as “an outbreak of a disease that occurs over a wide geographic area and affects an exceptionally high proportion of the population.”[3] An epidemic refers to the rapid spread of the disease, whereas in a pandemic it is the geographical spread of the disease affecting the entire world.

Epidemic and Pandemic are two different terms defined based on the level of spread. In addition, from an epidemiologic standpoint, “terms like these direct the public health response to better control and prevent a disease.”[4]

Any disease taking a form of a pandemic creates a worst-case scenario with the global health safety at risk. Studies reveal that “the influenza (flu) pandemic of 1918-1919 killed between 20 and 40 million people. It is one of the most devastating pandemics in recorded world history.”[5]

The World Health Organization (WHO) also declared a Covid- 19 as a Pandemic[6]. This virus is likely to have first developed in china in December 2019 and has continued its spread throughout the world. The emergence of covid-19 came to the downfall of many countries. India witnessed the first major victim of this disease during early March and as a result putting the entire country under lockdown to combat the spread of the disease.

III.          OVERVIEW OF THE ACT.

The Act which was enacted for curbing the spread of epidemic diseases empowers both the Central and State Government(s) to take certain actions to prevent spread of such diseases. The Act comprises of only four sections.

a)     Section 2 of the Act empowers the State Governments to take special measures and prescribe regulations during the outbreak of an epidemic disease. It empowers the state government to lay down temporary measures necessary to prevent the spread of the disease by way of public notice.[7]

b)     Section 2A of the Act empowers the Central Government to take measures and pass regulations for the inspection of any ship arriving or leaving India and for detention of any person intending to sail, if the Central Government is satisfied that India or any part of India is threatened with, an outbreak of any dangerous epidemic disease and the ordinary provisions of the law will be insufficient to take an appropriate action.

c)     According to Section 3 of the Act, any person who disobeys an order or regulation made by the government under the Act, shall be punished in accordance with Section 188 of the Indian Penal Code, 1860 (“IPC”). Section 188, IPC imposes punishment for disobeying an order promulgated by a public servant who is lawfully entitled to promulgate such order.  “he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple impris­onment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.”

IV.          ESSENTIALS OF SECTION 188 OF IPC

The Epidemic Diseases Act, 1897 imposes a penalty on the contraveners as per punishment under Section 188 of the Indian Penal Code, 1860, for flouting orders issued by respecting state governments to contain the spread of COVID-19.In the past, the Act has been enforced across the nation for dealing with outbreaks of diseases such as swine flu, dengue and in this case covid-19.

In Jeevanandham vs State[8], the court highlighted the essentials ingredients of section 188 as follows:

i) Promulgation of a legal order,

ii) its communication to the accused,

iii) its disobedience by him, and

iv) the injurious consequence as described in the section.

 

The term ‘promulgated’ means making an order known publicly. It can take various mediums from newspaper publishing to media announcements to whatever means of mass communications available at the times of a crisis. The exception to the same is when the public servant is not lawfully empowered to promulgate an order or the order promulgated is against public interest, this section shall not be applicable.

V.          INVOKING SECTION 188 IPC AND SECTION 144 CRPC

Section 144 is usually invoked and in the case of Covid-19 in greater public interest and to curb the spread of the virus orders under Section 144, Criminal Procedure Code (CrPC), may be passed by an authorized the Executive Magistrate of any state or territory, and any disobedience of the same will result in the commission of an offence under Section 188, IPC.

In Ram Samujh v State, the Hon’ble Bench in Allahabad High Court held that Section 188 includes within its ambit orders passed under Section 144 as also Section 145 also. In all cases under this section, it is crucial to show that the accused had knowledge of the orders  passed, for which violation, he was being prosecuted.

VI.          PROMULGATION OF AN ORDINANCE TO AMEND THE EPIDEMIC DISEASES ACT, 1897

The present covid-19 pandemic has warranted people to stay inside their houses and strict quarantine requirements. A rather unusual situation but  have been instances of the most critical service providers i.e. members of healthcare services being targeted and attacked by miscreants, thereby obstructing them from doing their duties which threatens the very system.

The Ministry of Health and Family Welfare stated that “Members of the Medical community, even as they continue to perform relentlessly round the clock and save human lives, have unfortunately become the most vulnerable victims as they have been perceived by some as carriers of the virus. This has led to cases of their stigmatization and ostracization and sometimes worse, acts of unwarranted violence and harassment. Such a situation tends to hamper the medical community and the system from performing their duties to their optimum best and maintaining their morale, which is a critical need in this hour of national health crisis. While healthcare service personnel are duty bound to serve without discrimination, the cooperation and support from society is a fundamental need for them to perform their duties with confidence.”[9]

The Union Cabinet in its meeting held on 22nd April 2020 has approved promulgation of an Ordinance to amend the Epidemic Diseases Act, 1897 to protect healthcare service personnel and property including their living/working premises against violence during epidemics. The President gave his assent for promulgation of the Ordinance.

The objective of the ordinance is that situations like this during a pandemic are of a crucial nature and there should be zero tolerance to violence or any injury to the health care personnel. Acknowledging the cooperation of the general public, there have been few incidents of violence which has demoralized the medical fraternity and therefore a need was felt to lay down strict provisions for the protection of health care personnel.

Definitions:

Violence is defined as to include acts committed against the health care personnel which can cause harassment, injury and loss or damage to property. Health care personnel is also defined to include person carrying out epidemic related responsibilities and may come in direct contact with affected patients and includes doctors, nurses, paramedical workers and community health workers; any other persons empowered under the Act to take measures to prevent the outbreak of the disease or spread thereof; and any persons declared as such by the State Government, by notification in the Official Gazette.

Prohibition

The penal provisions can be invoked when a person indulges in act of violence against the health care personnel or causes any damage to the property.

Punishment

The amendment makes acts of violence cognizable and non-bailable offences. Commission or abetment of such acts of violence shall be punished with imprisonment for a term of three months to five years, and with fine of Rs.50,000/- to Rs.2,00,000/-.  In case of causing grievous hurt, imprisonment shall be for a term six months to seven years and with fine of Rs.1,00,000/- to Rs.5,00,000/-.   In addition, the offender shall also be liable to pay compensation to the victim and twice the fair market value for damage of property.

Offences shall be investigated by an officer of the rank of Inspector within a period of 30 days, and trial has to be completed in one year, unless extended by the court for reasons to be recorded in writing.

The Central Government under the amendment has been given a concurrent role with the State Governments to take any measures that may be needed to prevent the outbreak of an epidemic or the spread thereof. In addition, the scope of inspection of vessels arriving or leaving the country has been enlarged to include road, rail, sea and air vessels.[10]

It also warrants the states to establish nodal officers to oversee the implementation. The central government also announced an insurance cover of Rs 50 lakh per person for health workers.

VII.          RESTRICTING MOVEMENT OF PEOPLE-DISASTER MANAGEMENT ACT, 2005

Another legislative framework invoked by the Central Government to control the coronavirus outbreak is the Disasters Management Act, 2005, “an act to provide for the effective management of disasters”. The Disaster Management Act provides the administrative framework to take measures to deal with such incidents and allows the government to access funds set up for this purpose.

The act defines disaster as,

“disaster” means a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area;”

Covid-19 was declared as a notified disaster by the Ministry of Home Affairs, to be regulated under the provisions of the DMA. In exercise of the powers and in compliance of the orders of the National Disaster Management Authority (“NDMA”), the Ministry of Home Affairsthe Ministry of Home affairs has been issuing directions for complete lockdown and to take effective measures for social distancing.

Strict enforcement of the order is of genuine concern at the pandemic stage. The DMA lays down punishments which can be imposed on non fulfillment of the directions given by the respective State Governments.

Section 51 to 60 of the DMA lays down the offences and penalties punishable under this Act.

i.          Punishment for Obstruction

Section 51 of DMA provides for the Punishment for obstruction to any officer or employee in discharge of his functions under the act and lays down punishment for non compliance of the directions of the government, on its conviction be punishable with imprisonment for a term which may extend to one year or with fine, or with both and if such obstruction or refusal to comply with directions results in loss of lives or imminent danger thereof, shall on conviction be punishable with imprisonment for a term which may extend to two years.

ii.          False Claims

Section 53 of the DMA deals with Punishment for false claims knowingly made or has reasons to believe to be false for obtaining any relief, assistance, repair, reconstruction or other benefits consequent to disaster from any officer of the Central Government, the State Government, the National Authority, the State Authority or the District Authority, shall, on conviction be punishable with imprisonment for a term which may extend to two years, and also with fine.

Therefore any false claim made by any person to obtain any undue advantage as during the Covid-19 crisis, such as furnishing false Medical Documents, shall be liable for punishment under the act.

iii.          Fake News

Section 54 of the DMA provides for punishment to a person who makes or circulates a false alarm or warning as to disaster or its severity or magnitude, leading to panic. Such a person shall be punished with imprisonment which may extend to one year or with fine.

This section makes circulation of any false material as a criminal offence. Thereby any updates or forwards on Whatsapp or any other social media platforms providing information with no official sources can be liable for punishment under section 54 of DMA[11].

Activities of spreading fake news have significantly increased among the whatsapp users. The government in order to curb such practice has constantly been urging people to discontinue circulation of fake news unless confirmed by an official source. The section tries to tackle the panic situation which erroneously affects the mental health of a person.

The Supreme Court in Alakh Alok Srivastavavs Union of India[12] by an interim order highlighted that “The migration of large numbers of labourers working in the cities was triggered by panic created by fake news that the lock down would continue for more than three months. Such panic driven migration has caused untold suffering to those who believed and acted on such news. In fact, some have lost their lives in the process. It is therefore not possible for us to overlook this menace of fake news either by electronic, print or social media.”[13]

iv.          Offences by Government Departments

The occurrence of a disaster casts a major duty on the government departments to discharge their functions as directed. Under section 55 of the act, any government department committing any offence without his knowledge or not exercising due diligence can under the act be deemed guilty and to be proceeded against and punished accordingly. However such prosecution can take place only after the previous sanction of the Central Government or the State Government, or by an officer authorized in this behalf by general or special order, by such Government.

VIII.          PREVENTIVE DETENTION UNDER NATIONAL SECURITY ACT

The stringent National Security Act, 1980 (“NSA”) has been applied in certain cases in India.[14]The state governments normally choose to invoke the NSA with a warning. The objective behind this for the people who have not been taking the lockdown seriously and also attacking the police officers.[15]

Key points under National Security Act are:

a)     The act allows preventive detention for months

b)     States or Centre can detain a people from acting in manner prejudicial to India’s security

c)     A person can be detained if he/she is a threat to India’s relations with foreign countries

d)     The Act is invoked to maintain public law and order

e)     It empowers the government to detain foreigners and regulate his/her presence or expel him/her from India

f)      The provisions in the Act are is re-notified every quarter

Article 22 (1) of the Indian Constitution says an arrested person cannot be denied the right to consult, and to be defended by, a legal practitioner of his choice. According to Section 50 of the Criminal Procedure Code (CRPC), any person arrested has to be informed of the grounds of arrest and has the right to bail.

However, under the National Security Act, none of these rights are available to the person detained. The government holds the right to conceal information which it considers to be against public interest to disclose.

IX.          CRITICISM OF THE EPIDEMIC DISEASES ACT& CORELATION WITH THE NEW AMENDMENT, 23rd APRIL 2020.

The Act has attracted warranted criticism due to the colonial nature and its inability to encompass present day situations. However with the new amendment the Union cabinet has seeked to revive the act and provide substance to continue further.

On a preliminary stage ‘lethal’ or ‘infectious’ or ‘contagious diseases’ is not given in the entire legislation. The law is ambiguous on the criteria for classifying an outbreak as “dangerous”, based on variables such as the severity of the outbreak. No stages, no differentiation, nothing.

Issues like restricting international travel, especially the use of air travel relative to sea travel, increased migration, higher density, urbanization and industrialization as such factors have contributed over the years to a change in the transition and propagation of communicable diseases are absent.

For example, the act is too ship-oriented and quiet on ‘air travel,’ which was rare at the time it was created but is now essential to be given proper consideration.

In an emergency response of the outbreak, the legislation does not provide provisions for the protection of certain rights and what stands suspended. “It is necessary as there could be little to no legal concern about the safety of human rights during emergency times.”[16]

Moreover, this act does not provide for how the powers bestowed on the government may be exercised in breach of any existing statute. A legislation born before our first Republic Day is incompatible with present constitutional provisions and challenges. The provisions of the Act have not, till now, gone under judicial scrutiny, thus interpretation is at the behest of the government. “While countries have been cooperating on natural disasters across the world, there is no such mechanism to respond collectively to pandemics.”[17] The last two decades have seen a surge in pandemics like swine flu, Ebola, SARS and Nipah, infecting hundreds of thousands of people around the world.

Legislation like the Epidemic Diseases Act needs to categorically address modern methods of outbreak prevention and disease control, such as the establishment of surveillance and early warning systems and a geographical information system to mapping diseases spread, arguing that these would be less intrusive methods of disease prevention and containment.

X.          CONCLUSION

The Epidemic Diseases Act has considerable visible pitfalls in combating the prevalence and re-emergence of communicable diseases in the nation to such extremities, especially in the changing and transforming nature of public health. What we require is a legislative structure that corresponds to the present situation. A strong public health regulation system guides government’s position in avoiding and regulating diseases.

The new amendment serves its purpose to establish and secure the health care professionals and increase monitory compensation and hold people accountable for violating the same. However, it still does not address the concerns of the issues faced by country in the current state. It still does not address bio-terrorism, bio-warfare, biological disasters, decontamination and chemical reactions. It lacks also on part of aspects related to health, environment, food and road safety because many diseases need multi-disciplinary approach and inter-departmental coordination as in cases of animal-to-human and human-to-animal transmitted diseases. It does not even address the new epidemiological techniques used to tackle such pandemics in the 21st century or  mention ways of quarantining a patient, accountability of departments (be it public or private) and punitive actions in case of failures. Nevertheless the fact that we have legislation in place is better than being void of one.

[1] Nicholas LePan, Visualizing the History of Pandemics, Mar. 14, 2020, https://www.visualcapitalist.com/history-of-pandemics-deadliest/
[2] Managing Epidemics, Key facts about major deadly diseases, World Health Organization, (May. 17, 2020, 03:14 PM) https://www.who.int/emergencies/diseases/managing-epidemics-interactive.pdf
[3]See, Merriam-Webster, Pandemic.
[4] Trisha Torrey, Difference Between an Epidemic and a Pandemic, Very well Health , (May. 17, 2020, 03:15 PM) https://www.verywellhealth.com/difference-between-epidemic-and-pandemic-2615168
[5] Jeffery K. Taubenberger and David M. Morens, 1918 Influenza: the Mother of All Pandemics, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3291398/
[6]Pandemic, (April 27, 2020, 10:20 AM), https://medium.com/@robertroybritt/pandemic-finally-declared-one-month-late-992f4f1bdb1a
[7] See, The Epidemic Diseases Act, 1897 https://indiacode.nic.in/bitstream/123456789/10469/1/the_epidemic_diseases_act%2C_1897.pdf
[8] (2019) 1 MLJ (Crl) 36
[9] See, Promulgation of an Ordinance to amend the Epidemic Diseases Act, 1897 in the light of the pandemic situation of COVID-19, PIB New Delhi, Apr 22, 2020,
[10] Id.
[11]Fake news, Live mint Mar. 17, 2020,  (April 27, 2020, 11:00 AM),  https://www.livemint.com/news/india/covid-19-three-held-in-telangana-for-spreading-false-news-on-whatsapp-11584388580508.html
[12]Writ Petition (Civil) No(s) 468/2020
[13]SamanwayaRautray, SC Asks media to publish official version of corona developments, Economic times, Mar. 31  2020, (April 27, 2020, 11:00 AM) https://economictimes.indiatimes.com/news/politics-and-nation/sc-asks-media-to-publish-official-version-of-corona-developments/articleshow/74919142.cms?from=mdr.
[14]See, Booked under NSA, (April 27, 2020, 10:58AM), https://www.businesstoday.in/current/economy-politics/coronavirus-in-up-persons-attacking-policemen-to-be-booked-under-nsa/story/400050.html
[15] See, Press Trust of India, Lucknow, Covid-19: UP to slap NSA against people who attack cops enforcing lockdown, (April 27, 2020, 10:58AM) https://www.business-standard.com/article/current-affairs/covid-19-up-to-slap-nsa-against-people-who-attack-cops-enforcing-lockdown-120040300496_1.html
[16]Tushar Agarwal, Epidemic Disease Act, 1897: Whether sufficient to combat deadly Coronavirus in India?, Modern Diplomacy, (May 24, 2020, 09;25 PM)https://www.google.com/search?q=%22It%20is%20necessary%20as%20there%20could%20be%20little%20to%20no%20legal%20concern%20about%20the%20safety%20of%20human%20rights%20during%20emergency%20times.%22
[17]Iftikhar Gilani, India, Pakistan grappling with archaic epidemic law, (May 24, 2020, 09;25 PM) https https://www.aa.com.tr/en/asia-pacific/india-pakistan-grappling-with-archaic-epidemic-law-/1785977