India is a country that has been witnessing epidemics since 1896. Epidemics like cholera, smallpox, and swine flu have resulted in huge mortalities in India. The recent pandemic declared globally is COVID-19 which stands for “Coronavirus Disease 2019”and causes flu and pneumonia-like symptoms resulting in damage to the lungs. It originated from Wuhan city in China and engulfed 209 countries worldwide. India also came in grip of the silent killer and as of 13th April 2020, it has claimed 308 lives and infected over 7984 people according to the recent update from the Ministry of Health and Family Welfare [1]. Scientists around the world are working tirelessly to find a cure to curb this pandemic. Currently, social distancing, quarantine, mandatory wearing of masks, and personal hygiene are being advised to contain the spread of the disease. In this regard, India has invoked 123 years old Epidemic Disease Act that was formed in 1897 to tackle the bubonic plague in Mumbai. It is an act formulated for the containment of epidemics by providing special powers that are required for the implementation of containment measures to control the spread of the disease[2].
For COVID-19, the subsequent provisions of the Act are being used to contain the outbreak:
- Section 3: “Any person disobeying any regulation or order created underneath this Act shall be deemed to have committed an offence punishable underneath Section 188 of the Indian Penal Code (45 of 1860)”;
- Section 4:“”No suit or alternative proceeding shall lie against anybody for anything done or in good faith intended to be done under this act.”
As the Epidemic Disease Act evolved under British India in the aftermath of a plague that broke out in Bombay State in the 1890s, it did not address the situations being experienced with respect to COVID-19. In 1897, the freedom fighter Bal Gangadhar Tilak was put behind the bars for 18 months under this Act for his newspaper’s ‘Kesari’ anti-establishment coverage onthe plague.David Arnold, a historian, describes the law as “one of the most draconian pieces of sanitary legislation ever adopted in colonial India.” The points that need to be reconsidered for strengthening the Act and making amendments to it are [3]:
- Ill-defined:It does not define “dangerous epidemic diseases”.
- Vaccination:No legal framework on the availability and distribution of vaccines and drugs.
- Migration: The act fails to cover the migration of labour population from one state to the other following the outbreak and closure of industrial units.
- Treatment of the infected: The Act gives more emphasis on isolation/quarantine measures and does not take into consideration organised public health response, measures on prevention of outbreak and mass vaccination.
- Accountability and transparency: The act lays down no clear account of all implementing measures and agencies to be established in the event of an emergency. It does not mention anywhere as to who has to be held responsible for the spread of the disease as there is no in-charge or board for the same. To make people accountable, the law should specify the roles and responsibilities of the legal functionaries or nodal agencies for the control and prevention of epidemics.
- Neglects Rights: There is no proper reference to the moral aspects of human rights to respond to an epidemic. This Act should have laws drafted keeping in mind the rights of the citizens. For example, the Public Health Emergency Response Act in Mexico lays down a clear description of the individual civil rights of persons quarantined or isolated.
- The obligation of the government:Changes are required so that the law mentions the obligations of the government regarding public health.
- Lack of response measures: It has no mention about the implementation of response measures.
Since the Act was formulated more than a century ago, the territorial boundaries of the Act need a relook. This act has many flaws in it since this article was enacted under different circumstances and is inconsistent with the present laws. Perhaps the inconsistency did not arise when the statute was enacted since there was no inconsistency with any existing legislation. However, this article is much like the Indian Penal Code which is being used to address the present issues. This law hence is redundant as the relationship between State and citizens has evolved ever since [4].
CONCLUSION
Given the effort our government is putting in to tackle this epidemic, one thing can be guaranteed for sure that we will be able to overcome the effect that this disease has put on the economy and health of the citizens. As of now, when there is no vaccine, the best possible way to tackle the spread of the disease is to self-quarantine and obey the directions issued by the concerned authorities.The Epidemic Disease Act has surely been an issue of debate as it was enacted during old times when there was no inconsistency with the law. But over the years, the relationship between the State and the citizens has changed drastically and the nature of the State has changed from a police state to a welfare one. Hence there is an urgent need to amass all the provisions in one overarching public health legislation so that the implementation of response to an epidemic can be effectively monitored. Without a comprehensive public health act, we are dependent upon old legislations like Epidemic Disease Act, 1897. A solution to this can be that the lawmakers can draw a leaf out of the National Disaster Management Act, 2005 as it clearly defines all the terms and has a proper description of all the implementing measures and agencies to be instituted in the event of an emergency.
By-
Tanvin Anand
Amity Law School, Noida
References
- Ministry of Health and Family Welfare, Government of India, available at https://www.mohfw.gov.in/
- How India is fighting Coronavirus with a colonial-era law on epidemics, Shantanu Nandan Sharma, The Economic Times, Mar 22, 2020, available at https://economictimes.indiatimes.com/news/politics-and-nation/how-india-is-fighting-coronavirus-with-a-colonial-era-law-on-epidemics/articleshow/74752473.cms
- Epidemic Diseases Act, 1897: Origin, Importance & Limitations, Karishma, IAS Express, March 18, 2020, available at https://www.iasexpress.net/epidemic-diseases-act-1897-origin-importance-limitations/
- Can the Indian legal framework deal with the COVID-19 pandemic? A review of the Epidemic Diseases Act, Harleen Kaur, Bar and Bench, March 27, 2020, available athttps://www.barandbench.com/columns/can-the-indian-legal-framework-deal-with-the-covid-19-pandemic-a-review-of-the-epidemics-diseases-act