By
Parth Shukla, II year LL.B. from The Maharaja Sayajirao University Of Baroda.
Today, the global community fights a severe threat to the health and stability of individuals in all countries. It fights the novel coronavirus (SARS-CoV-2), discovered in Wuhan, China, in 2019 that quickly spread to become a pandemic. The disease, named COVID-19, has currently resulted in over 1.61 million deaths globally. As of the writing of this paper, India has suffered fromapproximately9.86 million cases and just about 143000 deaths, and recovery of 9.46 million, are markedly low incidence, case fatality rate and high recovery rate, based on the population density of the country2.
India has a problematic history of diseases. A high density of the population, lack of sanitation and clean water, India often has struggled with infectious diseases. In 1897, a severe bubonic plague outbreak led to the creation of a law meant to aid public health.The Epidemic Diseases Act of 1897 was enacted as a means to prevent the spread of infectious diseases. The actions of this Act were severe. "There was forcible segregation of affected persons, disinfections, evacuation, and demolition of infected places. The assembly of crowds was prevented, public meetings and festivals were banned, and pilgrimage suspended"3
The Danish law comprehensively states lockdown orders, which includes closing off areas, measures to ensure supply place restrictions on access to business facilities.4 To reduce the spread of the disease, countries around the globe have taken unprecedented steps that have included issuing stay-at-home orders for many individuals. India has issued a lockdown and has worked to control the spread of Covid-19 significantly. However, there are questions concerning whether it violates the Indian constitution.
The powers of the Act are found in Section 2 of the concerned statute. The power allows the State to take enough legislative and administrative actions when it recognizes the risk of an infectious disease outbreak. The State must determine that “normal” means to prevent the spread of infection are insufficient. The Act is one of the shortest laws in India, containing only four sections. The First Section describes the purpose of the Act. The Second Section explains, in detail, the real policing powers of the State for public health purposes. The Third Section defines penalties for violating the Act. The Fourth Section serves to protect those who are required to ensure the Act is being followed, enabling IPC 188.5. India has enacted the Act several times since Independence. The purpose of enforcing the Act was to halt the“spread” of diseases, including cholera, swine flu, malaria, and dengue. In2018, it was enacted to deal with a cholera outbreak near Vadodara, Gujarat. In recent years, there have been numerous articles suggesting various changes to the law as India has dealt with several public health emergencies. At the time when the law was written, India did not have the right to sovereignty, and now when considering the law; Independence is an integral aspect of the Indian constitution. Historian David Arnold called the Act ``one of the most draconian pieces of sanitary legislation ever adopted in colonial India''6, and Myron Echenberg reported in his book that "the potential for abuse was enormous" 7. Sir John Woodburn, the proposer of the law himself, accepted the provision of extraordinary powers and the undefined wordings, though the colonized decentralization was the need of the hour.
After the formation of the Indian Constitution that chose a Parliamentary form of democracy where "executive is responsible to the legislature," today, the Ministry of Home Affairs struggled to minimize the misuse of such extraordinary powers given to the executive Under the Act. "The quasi-federal structure having an asymmetric cooperative federalism" of the Constitution of India Under Article 355, places a responsibility on the central government to defend all States on specific grounds but lacks on the epidemic's front leaving the states to fight while union trying to control under various acts such as Essential Commodities Act, 1955 (E.C.A.) and E.S.M.A. Act 1981, N.D.M.A. 2005 act, etc. Thus, a new uniform epidemic law can be legislated empowering the state and union with segregated powers, by Introducing a new subject as "Epidemic diseases" in schedule 7 concurrent list for such epidemics, which would cover the broad power distribution of centre-state and the extent of delegated legislation to be followed by executives, while having demarcation of administrative, legislative and financial functions, thus having checks and balances on power in such health epidemics.
One other significant concern about the law is that it violates the fundamental rights mentioned in the Indian Constitution. It infringes on the right to privacy, freedom of movement and assembly. It lacks consideration for human existence and merely reduces to animalistic confinement that needs to be monitored, "The Act emphasizes the power of the government but is silent on the rights of citizens.” 8 The Indian Constitution guarantees certain rights such as in Articles 14, 21, 19, Article 19 allows for peaceful assembly and movement, which is not permitted during public health emergencies. Under Article 19 (6), public health is one of the restricting factors concerning Article 19 (1) (g). Article 21 of our Constitution dictates that no citizen should be deprived of his or her life and liberty.9 The lockdowns imposed under the Epidemic Outbreak Act of 1897 violate these Articles, which emphasize freedom, movement, and assembly. Public health powers would argue that they are reasonably restricting civil liberties to protect the health of the citizens. The right to health is not a constitutional mandate in India10. The fundamental rights come under basic structure doctrine framed in the Kesavananda Bharati case.
India is not the only country to struggle with these circumstances. There have been protests around the world from citizens who believe that their government's attempt to isolate individuals as a public health measure strictly reduces civil liberties.11
The State always has to act as a welfare state while not being authoritative at all times. It thus has to look into directive principles via article 41 and 38 though not justifiable. Similarly, the Judiciary has reiterated the importance of health in various cases like Consumer Education & Research vs. Union of India & Others12, on January 27, 1995; the honourable Supreme Court stated that the right to health is under article 21. In the State of Punjab v. Mohinder Singh13, the Supreme Court held that “it is now a settled law that the right to health is an integral part of the right to life.” In C.E.S.C. Limited v. Subhas Chandra Bose14, the Apex Court, by referring to the Universal Declaration of Human Rights15 and International Covenant of Economic, social and cultural rights, held that the right to medical care is a fundamental right. All of the above judgments bind the State and enforce a responsibility to give minimum health and right conditions to live in for their citizens. Thus, creating a conflict of the extent of freedom and health which requires a well-balanced code.
One of the many limitations of this antiquated law is that it does not define the words "disease," "contagious," "dangerous," "infectious," "epidemic." Also, It does not have protocols needed for the distribution of drugs/vaccines, or any quarantine measures. The law lacks modern context16.
On March 11, 2020, at a Cabinet Secretary meeting, it was determined that Section 2 of the Act should be enacted. At this time, sixty cases had been diagnosed in India. India acted aggressively at this time with the rapid enforcement of the Act.
The lockdowns across the globe are a new phenomenon for many citizens. Indian citizens have seen similar actions before due to repeated enforcement of the Act. It was enacted in 2009, 2015, and 2018. However, in many of these cases, only regions were put on lockdown. As per the constitution, the Act to make laws and put regulations in place for its citizens is mostly in the jurisdiction of the State, which the union has to depend on, as the same is a state subject. Since it is in concurrence with List 2 clause 6, which deals with public health and sanitation, thereby, the present Act is invoked by the states under "Regulations" as asked by the union to be invoked. Thus, various states invoked regulations such as Bihar Epidemic Diseases COVID-19 Regulations 2020, Uttar Pradesh Epidemic Diseases COVID-19 Regulations 2020, and other states. Few states are very proactive such as Goa, which is readily applying the Goa, Daman, and Diu Public Health Act 1985 while amending it to current needs to control the epidemic.
The question of amending the Act came twice in Parliament recently, in both 2008 and 2017, to be rejected again twice, over the issue of state autonomy vis-à-vis the Center. A PIL has also been filed 17 before the Karnataka High Court that mainly focuses on greater chances of the spread of infectious diseases in confined areas as jails, district courts, and the legal urgency that the Government take prompt action when confronted with an epidemic.
The new or amended law needs to cover the dynamics of the economy, education, and various other spheres of life that are hindered during such epidemics. China, Australia, and Canada have strong epidemic laws and guidelines which, to a great extent, define actions needed by authority and citizens, which India can look into. India has ventured into drone technology, mobile-based applications (Arogya Setu application), immediate containment centre while building upon the Integrated Disease Surveillance Units (I.D.S.P.), Rapid Response Teams (RRT), an online awareness and education platforms, social distancing (a current norm), although, most of these require a legal definition whereas the social security, labour laws, workmen acts, and laws leave a huge need to be addressed.
The recent much-needed Amendment to the Act creates specific punishment for attacking healthcare workers. Some groups have chosen to view the healthcare workers as a potential for contagion in the community. The Amendment makes it a non-bailable offence to attack a health care worker. Also, the crime may be punishable by a jail sentence ranging from three months to five years18. It was a necessary change to the law via ordinance, which was implemented quickly.
In a positive progression post, the Epidemics act 1897, In 1955 and 1987, the Central government made a Model Public Health Act but failed to persuade the states to adopt this. The same act was revised by the National Institute of Communicable Disease (currently the National Centre for Disease Control) since long, still, the revisions have not been approved yet by the government19 In 2017, Draft Public Health (Prevention, Control, and Management of epidemics,bio-terrorism, and disasters)bill,2017, was comprehensive and fulfilled obligations to replace the Epidemics Act but fell short on the process of relinquishing of extraordinary powers by the Government which was not delineated in the bill, the National Health Bill of2009 on similar lines attempted to delineate the roles and obligations of the Central and State Governments through its Sections 6(1) and 6(2) respectively. However, the 2009 Bill failed on protests of curtailing states autonomy while the aspect of relief of funds was lacking in both the bills.
The pandemic is not over. India has done a tremendous job of limiting the number of cases and deaths from Covid-19 and stands at a much better position than many developed countries. It is highly debatable whether the lesser damage to our country can be attributed to the enactment of the Epidemics Act 1897. There have been few amendments to the Epidemics Act 1897 since the beginning of the Covid-19 epidemic. The ability of the government to utilize an antiquated law lacking modern context that does not address civil liberties (fundamental rights) is a huge issue and needs necessary changes or a complete repeal. India can neither lack public health policing powers, nor should it infringe on the rights envisaged by our founding fathers. While the government should be praised for its prompt actions to safeguard its citizens, we have to understand the difference in these circumstances between our inability and our unfreedom.
1 Parth Shukla
2 Johns Hopkins University. (2020). COVID-19. Retrieved from: http://coronavirusstatistics.org
3 Rakesh, P. S. (2016). The Epidemic Diseases Act of 1897: public health relevance in the current scenario.Indian journal of medical ethics, 1(3).
4 Danish Epidemic Act, 2020 (Denmark).
5 Epidemic Outbreak Act of 1897. (1897). Retrieved from: https://www.firstpost.com/health/to-combat-coronavirus-india-invokes-provisions-of-colonial-era-epidemic-act-all-you-need-to-know-8142601.html
6 Arnold D. Science, technology and medicine in colonial India. United Kingdom: Cambridge University Press; 2000: p143.
7 Echenberg M. Plague ports: the global urban impact of Bubonic plague, 1894-1901. London: New York University Press; 2007: p 58.
8 Rakesh, P. S. (2016). The Epidemic Diseases Act of 1897: public health relevance in the current scenario. Indian journal of medical ethics, 1(3).
9 Indian Constitution. (1949). Constitution of India. Retrieved from: https://www.india.gov.in/my-government/constitution-india
10 Islam, M. (2017). Right to health as a constitutional mandate in India. Retrieved from: http://ijariie.com/AdminUploadPdf/RIGHT_TO_HEALTHA_CONSTITUTIONAL_MANDATE_I N_INDIA_ijariie5596.pdf
11 The Journal. (2020, April 20). Explainer: Why are people protesting against Covid-19 lockdowns in the U.S. Retrieved from: https://www.thejournal.ie/covid-19-protests-in-us-5078730-Apr2020/
12 AIR 1995 SC 922
13 AIR 1997 SC 1225.
14 AIR 1992 SC 573
15 The Universal Declaration of Human Rights, 1948 (GA 217 A), Art. 25.
16 Tewari, Manish. (2020, March). India’s fight against health emergencies: in search of a legal architecture ORF Issue Brief, 349.
17 R.M. Biju, ‘Coronavirus: PIL filed before Karnataka HC to amend Epidemic Diseases Act, 1897, constitute Epidemic Disease Control Board’ Bar and Bench (March 21, 2020) accessed on March 24, 2020.
18 Singh, H. (2020, April 23). How amendment to the Epidemic Outbreak Act 1897 helpful in tackling attach on coronavirus warriors. Retrieved from: https://www.jagranjosh.com/general-knowledge/amendment-in- epidemic-disease-act-1897-1587621500-1
19 Rakesh PS, The Epidemic Diseases Act of 1897: public health relevance in the current scenario
<https://ijme.in/articles/the-epidemic-diseases-act-of-1897-public-health-relevance-in-the-current-scenario/?galley=html> last accessed on 27thMar, 2020