This article has been written by Madhavi Raje and Smera Sarnath Sonker, students of Dr. Ram Manohar Lohiya National Law University, Lucknow.

Introduction

The Epidemic Disease Act came into force in India in 1897, back when India was still a British colony. The Act was introduced before the Council of the Governor-General of India in Calcutta by John Woodburn to ensure better protection and prevention from the deadly and dangerous epidemic disease. The Act still is in existence even after 123 years like many other acts drafted by the Britishers back in time for British India. It was brought with a specific objective, to contain the spread of a bubonic plague that stuck the city of Bombay. The Act is a brief culmination of 4 sections. 

Section 2 highlights “Power to take special measures and prescribe regulations as to dangerous epidemic disease.”

Section 3 provides for penalty in case any person disobeys any regulation or order that is made under this Act or the Act shall be punishable under section 188 of the Indian Penal Code: the provision deals with the offence of ‘Disobedience to order duly promulgated by public servant.’

Section 4 ensures and provides protection and immunity to people who are working under this Act from any legal action.

The object of this article is to study how successful is the century old Act to deal in the current situation of a global pandemic which has shook the entire world- COVID-19 or as more commonly known as CoronaVirus. The spread of this disease is quick, swift and very secretive because of which the governments worldwide are facing huge problems to control the spread of this novel virus whose vaccine or efficient medications are still not available. Though we are having acts which are much older than the Epidemic Disease Act, like Indian Penal Code and Indian Evidence Act, which are serving us good but they have undergone many amendments over the years. With the current threat of coronavirus, it has become very important for us to find out the shortcomings of this Act and make it more appropriate to use in today’s time.

The Epidemics Act in India increases government’s control over the people in order to contain the spread of the virus. It allows government to take special measures to defeat the epidemic such as inspection of people travelling through railways or other means such as roadways, by air or by sea. Segregation of suspected or confirmed patients of the infectious disease in hospitals, public places, quarantine centres, isolation wards or other places.

Moreover, if the central government feels that any part of the country or country is susceptible to any infectious disease and existing laws are not sufficient to prevent the outbreak, they might form rules and regulations to prevent the same which may involve inspection of any ship or vessel leaving or arriving at any port. It further authorizes to impose penalty on anyone disobeying any order or regulation made under this Act, under section 188 of IPC, however this recently has been challenged in a petition to Supreme Court by Dr. Vikram Singh who is a former DGP of Uttar Pradesh stating that FIRs cannot be lodged under article 188 of IPC as this might institutionalize as well as normalized police brutality which are quite evident in frequent inhumane lathi charges amidst the lockdown.

In his petition he says, “these FIRs are anti-thesis to Code of Criminal Procedure, 1973 (CrPC), and thus violate the Rule of Law. Consequently, rights of persons under Article 14 and 21 are affected.” He further adds that in the plain words of Section 195 of CrPC no prosecution under section 188 of IPC can be taken into cognizance by any court. He further adds:

“Police action on an individual who is perhaps suffering from distress and lack of information as a result of the circumstances has ramifications which can extend beyond the corona virus lockdown, and cannot be good for a constitutional democracy.”

He further clarified that he is not promoting people to break lockdown he just wants a more humane treatment meted out by the authorities and to prevent misuse of power.

The last provision of the Act provides for legal protection of persons working under this Act by allowing no legal proceedings to run against them on their actions done under this Act.

Nevertheless, no law is essentially sacrosanct; they inherently have both merits and demerits or limitations as they were drafted by human beings who tend to make mistakes, this is the reason why amendments are very important to preserve the merits and eliminate the demerits with changing times. 

Limitations of the Act

This Act brought by Britishers in the of 19th century has many limitations. Its efficiency drops down steeply when put to use in today’s time. The biggest limitation of the Act being that it was made at a time when the demographic and the global situations were completely different. There are many features in this Act which indicate that this Act is not in consonance with the current time.

When this Act was enacted the major mode of long-distance travel was through waterways. This is why section 2A of the Act talks only about waterways as the most probable medium that might spread the virus and gives central government the power to take any measures or prescribe regulations to inspect any ship or vessel; however in the current times transport is not just limited to waterways we have other developed means as well such as airways and roadways both of them more or less are equally prone to be the medium of spread of the virus and therefore there is a need to incorporate them as well in the Act with waterways and allow the central government to prescribe regulations and take measures as required under the Act.

Section 2, of the Act gives immense power to the centre and the state while dealing with the outbreak. It gives the centre and state government the power to identify the suspect and segregate them so that they are not in contact with others. This helps in preventing the spread of the virus. The governments can further order ban on public gatherings, disinfection of places, evacuation of people from a virus prone place to a safer place. The government can further use it for forceful segregation of people and put restrictions on people’ freedom of speech, movement, profession and privacy guaranteed in ‘Fundamental Rights’ which has potential of being misused by the government officials. This is why some historians refer to it as a draconian law.

This Act talks about ‘dangerous epidemic disease’ but does not provide any definition for the same. It is not clear as what factors are necessary for an epidemic or a disease to be termed as a dangerous epidemic disease. Whether it is the case fatality ratio or the rate of spread of the virus or its severity or any other factor. There should be a proper scientific definition of terms used in the Act so that there is no scope for confusion.

Another lacuna in this Act that shows it is a outdated law and requires modification, is that it lays a lot of emphasis on tackling the outbreak through social vaccines like isolating people, which definitely helps in breaking the transmission chain. But recently we have gone through major technological advances, and scientific methods like developing vaccine and testing people play a crucial role in the times of outbreak. The Act should further make provision for those who cannot afford testing, this would in turn increase testing which is very important to prevent the virus from spreading.

Analysis of laws of other countries

In the wake of Corona Virus which is a pandemic, countries around the globe are trying to contain the spread of the virus. For this they are implementing their respective epidemic acts and where necessary, even making new rules. For instance, in South Korea after confirmed cases of Middle East Respiratory Syndrome (MERS) in 2015 they reviewed their law which reinforced the power of Korean Centres for Disease Control and Prevention (KCDC) to command. Further, a legal basis to compensate for loss of patients with infectious diseases and fatalities was also prepared (Act No. 14316, Infectious Disease Control and Prevention Act).

Not just one, South Korea has several laws to deal with infectious diseases with a common aim to prevent and protect. It further provides a legislation which allows to get hold of private data of confirmed or potential patients without a warrant. One of the major reasons of flattening of curve for Corona Virus in South Korea is their intensive contact tracing. In USA, President Trump signed the CARES Act (The Coronavirus Aid, Relief, and Economic Security) which was passed in the wake of Covid-19 on 27th March, 2020 by Congress. “The CARES Act provides fast and direct economic assistance for American workers, families, and small businesses, and preserve jobs for our American industries” and a $2 trillion economic relief package to support it, to protect the people from impact of the pandemic on public health and economy.

In U.K. the new law i.e. the Coronavirus Act provides the recruitment of recently retired medical professionals to increase manpower. As well as, allowing medical students who are about to graduate to render their services, the further provide indemnity to clinical negligence for those medical professionals who are working outside the area of their expertise in desperate times, it also allows law enforcing officers to arrest, isolate and detain people who might be a threat to public health.

In China, massive and rigid lockdowns, heavy fines for breaking quarantine and social distancing might have improved the situation. We can further take clue from Singapore which has an elaborate Act for tackling such outbreaks, Article 58 of the Act grants extraordinary power in relation to emergency method, the clause 2 states “Any person who wilfully neglects or refuses to carry out or obstructs the execution of any emergency measure formulated and implemented under subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 6 months or to both.”

Suggestions

It is a very outdated Act and would requires major changes which can make it fit for use in today’s time. So, here are some suggestion for the amendments:

1. Recently, it has been seen how people having corona virus have been trying to hide themselves. Others who were tested positive for the virus and were isolated in the quarantine centres tried to escape the place. If this is not taken care of then the whole exercise of contact tracing, lockdowns and testing would succumb. This Act should put some responsibility on the citizens to report it to the health official if they think they or any other person is affected by the virus and should impose punishments and fines on those who knowingly hide suspects or infected persons.
2. Another section untouched by the Act is the spread of fabricated news in such times of outbreaks. Back, when the Act was made, technology was not so developed as it is today and therefore no one could even think about having cyber laws. But today, the whole world is driven by technology. With no doubt technology is a boon in such times, as we can easily communicate any new information about the virus in almost no time. But it has its ill-effects as well. In such times the markets of rumours also get hot. A lot of fake information about the virus or its spread or any misinformation about government policy or unproven remedies for the same, surface all over the internet. We have seen recently, how this led to panic buying or people consuming hydroxychloroquine without even consulting the doctor or gathering in large numbers and thus failing the whole purpose of lockdown. This should be a major concern and the Act should have stringent provisions to nip the spread of fake news in the bud.
3. While tackling with any epidemic, segregating and monitoring the affected people is very important. For this purpose, they are put in quarantine centres. Governments need to ensure that these quarantine centres are equipped with proper sanitation and medical services. Recently, the people who were kept at these isolation centres expressed their concerns about lack of basic sanitation and hygiene at these places. Most of the isolation centres were on the outskirts of the cities in some old building with clogged toilets, no proper ventilation, at some places there were no arrangements for food and water supply. If this remains the case then people might find it more tempting to escape the isolation centres or never get themselves tested. The Act should make provision for the government to ensure that these isolation centres have basic hygiene and sanitation and that they have proper food and water supply. 
4. One of the major drawbacks of this Act is that it grants too much power to the governments which in turn can result to extreme brutality and human rights violation. Article 10 of the European Convention of Human Rights provides the right of freedom of expression and information, in current scenario of COVID-19 it is often evident that this as well as Article 19 and 21 of Constitution of India are violated. It should be checked that proportionate force is put to use to prevent any chaos and brutality. 

Conclusion

This legislation is a colonial legislation like many other Indian legislations but the difference between Epidemic Act of 1897 and other acts is, the latter have undergone various amendments post-independence from time to time making them more inclusive with the changing times. The Epidemics Disease Act not only requires major changes in its present sections, but further requires new provisions to be added. Today, we see how government has to come up with new rules for tackling the problems like, movement of migrant workers or attacks on health care professionals or policemen or ensuring distribution of food grains to the poor. All of this clearly proves that this Act needs to be repealed and a more inclusive, suitable and humane Act needs to be formed, which can deal with an epidemic situation in present time. The 21st century is marked by major developments in science and technology and lifestyle changes, which should be considered while making changes in the current Act.

The Act should include specific and clear provisions to deal with outbreak of an epidemic. It should be self-sufficient and not vague as it is today.

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