This article is written by Hardika Kukreja, Manas Agrawal, and Shantam Patil, from HNLU, Raipur. This article explains the development, history and evolution of the Epidemic Diseases Act of 1897.
“Victory comes from prominent sacrifices.”
Table of Contents
Introduction
The world was in a flux when the cluster of cases of illusive pneumonia cases suddenly appeared in the Wuhan, Hubei Province. The illusive pneumonia and respiratory infections cases were later coined as the COVID-19 disease, found to have be caused by a crown-like spiked virus, which was later named as the SARS-CoV-2, a successor of coronavirus responsible for 2003 SARS outbreak.
These times seem to be of utter distress as the world continues to engage in its battle against the novel Corona Virus (COVID-19). The outbreak of COVID-19 pandemic has become a global crisis and forced several countries across the globe to undergo total lockdowns, including the most developed and technologically advanced ones, in an attempt to prevent and contain the spread of this novel virus.
Only because of Coronavirus, wheel of the economy stops, and 1.35 billion people are stuck at their homes and where ever they were before 24th March due to the lockdown imposed by the Government of India. There are many lives at stake now, all around the globe, because of only one reason, i.e., Covid-19. The first case of this pandemic in India reported on 30th January 2020. This deadly virus originated from the Wuhan Institute of Virology, China. Furthermore, bombshell the whole world and shaken every powerful Nation known. Moreover, to tackle this virus, the GOI imposed a British Regime, 123-year-old law: The Epidemic Diseases Act, 1897.
On 11th March 2020, Karnataka became the first State to impose this Act, which was followed by Haryana, Maharashtra, Delhi, and others. India shut its $2.9 trillion economies, closing its businesses and issuing strict stay-at-home orders to more than a billion people in India.
History
Like in the present scenario for the novel COVID-19, we are suffering. About 123 years back, i.e., in 1896, the bubonic plague (so-called because of swellings called buboes that erupted on the bodies of the infected), also called “Black Death,” arrived in Bombay in 1896 affected China, Turkey, Japan, and Russia as well. After four months of its recognition, i.e., on 19th January 1897, Queen Victoria delivered a speech in Parliament addressing her Government to take strict action to control this pandemic. After a week, Epidemic Diseases Bill introduced in Council of the Governor-General of India in Calcutta for prevention of the spread of the pandemic. John Woodburn, the council member who introduced it, himself considered the powers mentioned in it as ‘extraordinary’ but ‘necessary.’ Woodburn emphasized that people must ‘trust the discretion of the executive in the grave and critical circumstances.’ With the debate over it lasting only a day, the Epidemic Diseases Act passed on 4th February 1897.
Mr. Woodburn while introducing the bill categorically stated that the existing laws were inadequate to empower the concerned officials to deal with various matters and calls for a legislation conferring wider powers on the government to take such measures as it may deem necessary considering the situation at hand.
Though the bill noted the extraordinary powers conferred on the municipal bodies, cantonments as well as local government to deal with such situations, it felt those to be grossly inadequate necessitating a dedicated legislation over the matter, conferring even wider special powers over the Colonial government, government of local presidencies as well as other local bodies including the power to check passengers travelling from sea routes and trains.
However, the British colonial Government has time and again been accused of cleverly misusing the act to imprison freedom fighters owing to unchecked powers of wide amplitude conferred under the act. Looking at the history of this act makes it amply clear that the act was a hastily passed legislation.
It gave extraordinary powers to the authorities under which they can detain anybody at any time and place, take the detainee for medical examination and frisk anyone. Under the superintendence of Plague Commissioner Walter Rand, Military troops searched door-to-door every single house in Poona. They violated the modesty of women and disturbed the mechanical as well as the social condition of people.
Tilak wrote two articles in his newspaper Kesari about all these unethical events happening around. He opposed this Act, and he used the term “Military Terrorism” for this draconian law. A week after the publishing of the articles, Rand fatally shot by Damodar Chapekar and was declared dead in the hospital. Assuming Tilak’s article persuaded the murder, the Government booked him under sedition charges. The Bombay High Court, with a jury verdict of 6-3, held Tilak guilty and sentenced him to 18 months prison. It was the first-ever conviction for sedition charges in colonial India.
It same enforced in 2009 to tackle the outbreak of Swine flu in Pune; in 2015 at Chandigarh for dengue and Malaria; and in the latest in 2018 to tackle cholera spreading in a village in Gujarat.
Difference Between Outbreak, Epidemic and Pandemic
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Outbreak It is a disease spread on a small scale, and the area covered is small as well. Ex: – Stomach flu, Spanish flu, Bird flu and Minamata. 
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Epidemic It is a disease that is limited to only some geographical extent. Ex: – AIDS, Ebola, smallpox, yellow fever, tuberculosis, and bubonic plague. |
Pandemic It is a disease that is at large without any limitation, geographical extent, international scale, and out of control. Ex: – Influenza, H1N1 and Novel Covid-19. |
Contemporary scenario in India
Indian Lawmakers have been making continuous efforts to strengthen the public health regime. As early as in 1955 and again in 1987, the central government made an attempt to develop a model public health legislation but unfortunately failed to pursue the states in adopting them.
The draft National Health Bill 2009 was an attempt in this direction so as to guarantee a comprehensive legal framework for providing essential public health services and powers for an adequate response to public health emergencies through effective collaboration between the Centre and the states. A rights-based approach has been adopted by this Bill which upholds the right receive to treatment and care. It precisely expresses the public health obligations of the government. The Act also provides for the formation of public health boards at the national as well as state levels for smooth implementation and effective coordination. However, the bill lapsed before seeing the light of the day.
In another attempt, the Central Government introduced a bill in 2017 namely the ‘Public Health (Prevention, Control, and Management of Epidemics, Bio-terrorism and Disasters) Bill’. The said Bill was to repeal the Epidemic diseases Act. The bill makes provisions so as to confer wide powers on State Government and local authorities to prevent, manage and control public health emergency. The act inter alia empowers the government to quarantine infected persons, regulate the dissemination of appropriate information, regulation including blanket ban over transport and distribution of toxic substances, taking other relevant measures such as closure of public places such as markets and implementation of social distancing measures. The Bill also embraced a list of over 30 epidemic prone diseases. However, even after three years, it still awaits to see the daylight.
India has been a country which has analysed the lacunas of the legal systems of several countries and learnt from them. Therefore, it becomes imperative to analyse the laws of the several countries at this juncture. Switzerland is one of the leading nations in terms of healthcare services rendered; it had enacted the Epidemics Act, 2010 which came into force in 2016. Conversely, United States of America and United Kingdom have also enacted Combat Methamphetamine Epidemic Act, 2017 (CMEA) and Public Health Act 1875 (Part- III), respectively.
The aforementioned countries are among the top countries which are a part of the quorum of the best health services in the world and all of these have a defined legislation. The Epidemic Legislations of the countries enunciated above are the specimen of the elaborated assemblage of provisions by which the countries have an action plan of dealing with the spread of the epidemic and subsequently avoiding any arbitrariness on the part of the government. Therefore, there is two-facet advantage to it.
Derivation of Authorities and Powers from the Indian Constitution
In an extraordinary situation like a pandemic, there may be a possibility of repugnancy between authorities, powers, and jurisdiction among the Centre and State. To deal with this Constitution have provisions under part Ⅺ (Relations between the Union and the States) in which Articles 245, 246 and 254 deal with the distribution of parliamentary and legislative powers.
A.245– (Extent of laws made by Parliament and by the legislature of states)- Parliament has powers to make any law in the whole country, and State has the power to make a law that is effective only to the extent of State boundaries. It means new state new laws.
Moreover, laws made by the Centre would not become invalid or void on the ground that has extra-territorial jurisdiction.
A.246– (Subject matter of laws made by Parliament and by the legislatures of states)- Parliament has exclusive supremacy to make laws with subject matters mentioned in List Ⅰ, i.e., Union List in the seventh schedule. The State also has exclusive power to make laws for such a particular State as to subject matters mentioned in List Ⅱ, i.e., State List in the seventh schedule.
Furthermore, there is List Ⅲ, Concurrent List in the seventh schedule, which contains subject matters under which both Parliament and State governments have the power to make laws according to the mentioned subjects. This list includes subjects that give powers to both Central and State governments to make laws, subjects such as education, population, criminal law, forests, medical, administration of justice, and public health.
Parliament is bound to make laws under list Ⅰ and Ⅲ of the 7th schedule and does not have the power to make laws under the subject mentioned in list Ⅱ. It applies to State; they can make laws under list Ⅱ and Ⅲ only.
A.254– (Inconsistency between laws made by Parliament and laws made by the legislatures of states)
- If any law made by State Legislature is repugnant to any provision of a law made by Parliament under valid criterion and subjects mentioned in Union and Concurrent list. Then the law of Parliament will prevail, and state legislatures law to the extent of repugnancy would be void.
- If any law made by any State Government and the same has been reserved for the consideration of President or has received his assent and the same law is repugnant to any law made by Parliament, then the law will prevail in that particular State. Provided nothing in A. 254(2) shall prevent Parliament to make any law at any time for the same matter including a law adding to, amending, varying or repealing the law so made by the legislature of the State.
Furthermore, the Concurrent list has provisions under:
Entry 6, which mentions- Public health and sanitation; hospitals and discrepancies.
Entry 29, which mentions- Inhibition of the allowance from one State to another of infectious or contagious ailments or pests affecting man, animals, or plants.
Under which there is a possibility that a room for doubt and anonymity occurs between Centre and State’s law. Then here comes the doctrine of repugnancy, which essentially deals with the conflict of laws between Center and State.
Doctrine of Repugnancy
This doctrine deals with the distribution of powers, inconsistency, opposition, and conflict of laws made by the parliament and state legislatures. A renowned and authoritative judgment given by the Hon’ble Supreme Court of India with a bench of distinguishable judges like Hon’bles Y.V. Chandrachud and P. N. Bhagwati present cleared all rooms for any repugnancy.
The Court said:
- When the provisions of law made by Parliament and State legislatures in the concurrent list are entirely inconsistent and are irreconcilable, the law made by the Parliament will prevail, and the law made by the State will become void given repugnancy.
- Where a law passed by State comes into collision with the law passed by Parliament on an entry in the concurrent list the law passed by a state will prevail to the extent of repugnancy, and the provision of the Central Act would become void provided that the state action has been passed following clause 2 of A. 254, ie. President’s assent is given or reserved.
- When a law passed by State Legislature being substantially within the scope of the entries in the State List entrenches upon any of Entries in Central List, the constitutionality of law may uphold invoking the doctrine of pith and substance if on an investigation of the provisions of the Act it seems that by and large, the law falls within the four corners of State List and entrenchment, if any, is purely incidental or insignificant.
- In National Engg. Industries Ltd. v. Shri Kishan Bhageria, it was held that the most satisfactory test of repugnancy is that if one prevails, the other cannot conquer. Like this, the Court summarised the test for defining repugnancy and established the doctrine of Repugnancy.
In any dispute between State and Center related to repugnancy in any provision made, with all the possibilities and solutions, the Government is prepared. Furthermore, the smooth mechanism of law and order will go on.
What Epidemic Diseases Act’s section conveys?
The Epidemic Disease Act, 1897 is an array of four compendiary sections which makes it one of the shortest legislations to be in force. The initial section of the act enunciates about the short title and the territorial jurisdiction of the same. The second section is divided in two parts- the first part enunciates on the power of the state government to take necessary temporary measures to protect the citizens and in pursuance of it the government is also authorized to prescribe regulations as well as allocate funds to take remedial measures in the time of outbreak of a dangerous epidemic disease.
This section also gives power to government to segregate the persons travelling by rail or by any other means if they are suspected to be infected by the disease. The second part of the second Section, i.e., Section 2A resonates to the powers of the central government, the government is authorized to devise guidelines for inspection of ships and vessels when the contemporary law fails to curb the epidemic. The succeeding section deals with penalty, wherein any person disobeying any regulation or act laid down by the legislation shall be liable to be prosecuted under Section 188 of Indian Penal Code, 1860. The last section of the act elaborates on the protection of the persons acting under this enactment. This section is imperative as it covers within its ambit the protection of all the health care workers who perform their duties in good faith. Recently, The Epidemic Diseases (Amendment) Ordinance, 2020 was passed in wake of the violent attacks on doctors, making such acts of violence cognizable and non-bailable offence, punishable up to 7 years of imprisonment and/or up to 5 lakhs penalty. It also obligates the Police Inspector to complete investigation within a fixed period of 30 days.
Over the period of time the century old act has accumulated several flaws which need to be addressed. The Act conferred wide unrestricted, unfettered powers on the government to take necessary measures and actions as it may deem fit in situation of an epidemic, without even defining the basic term which forms the very foundation of this act, that is “dangerous epidemic disease”. The Act aims at preventing the spread of a disease rather to curb or eradicate the disease itself. As mentioned earlier, the act lacks definitions of even basic terms forming the basis of this act. The act simply empowers central and state government to prescribe temporary regulations of general nature if it is of the opinion that the epidemic cannot be controlled by the existing laws of the land rather than prescribing specific measures and directions to be taken by the government during such unfortunate events. Additionally, no reference has been made to ethical aspects and human rights principles in responding to an epidemic. Moreover, the punishment as provided under S.188 of IPC call for a revision.
An ordinance has passed by President of India on 22nd April 2020 named “THE EPIDEMIC DISEASES (AMENDMENT) ORDINANCE, 2020” NO. 5 OF 2020. Certain changes have made, which includes insertion of new section like:
1A- Insertion of new definitions for acts of violence, healthcare service personnel, and property.
2B- Prohibition of violence against health care service personnel and damage to property.
3A- Cognizance, investigation, and trial of offenses.
3B- Composition of certain offenses.
3C- Presumption as to certain offenses.
3D- Presumption of culpable mental state.
And 3E- Compensation for acts of violence. Also, there have amendments in sections 2A and 3.
There are provisions for strict and harsh punishments against healthcare personnel, which attract S.320 of I.P.C. for grievous hurt. The ordinance includes imprisonment for a term not be less than three months, and it may extend to 5 years with fine, not less than 5K to 2 Lakh INR.
Criticism
No definition of What is an Epidemic in the Act itself. There is no definition of a “dangerous epidemic disease.” The regulations under the Epidemic Diseases Act, 1897, requires medical practitioners to alert the public health authority about anybody with a transmissible disease and reveal the identity of the person.
- “The Epidemic Diseases Act 1897, which is more than a century old, has major limitations when it comes to tackling the emergence and re-emergence of communicable diseases in the country, especially in the changing public health context. Over the years, many states have formulated their public health laws, and some have amended the provisions of their epidemic disease Acts. However, these Acts vary in quality and content. Most are just “policing” acts aimed at controlling epidemics and do not deal with coordinated and scientific responses to prevent and tackle outbreaks. There is a need for an integrated, comprehensive, actionable, and relevant legal provision for the control of outbreaks in India that should be articulated in a rights-based, people-focused, and public health-oriented manner”, commented an article published in the Indian Journal of Medical Ethics.
- In 2009, a National Health Bill was proposed to replace this Act with a more rights-based regime. The bill recognized health as a fundamental human right and stated that every citizen has a right to the highest attainable standard of health and well-being. However, the Bill could not get clearance in the Parliament and eventually lapsed.
Conclusion
A detailed analysis of the Act invariably leads to the conclusion that the act is archaic, inadequate and irrelevant considering the contemporary era. India has promulgated several legislations which deal with an array of topics but still there is a need of a comprehensive enactment which specifically deals with an issue like that of the pandemic of COVID-19.
Moreover, looking at the limitations of the Epidemic Diseases Act, 1897 it becomes unambiguous that there is an urgent need for a consolidated and comprehensive legislation which encompasses within its ambit extensive guidelines setting out roles, responsibilities and obligations of the government as well as outlining in clear terms, the rights of the stakeholders affected by implementation of such act, taking into consideration the modern scientific and technological developments to deal with such crisis as like of that one which is being currently faced. COVID-19 has affected countries in many spheres including their academics, healthcare and economics.
There is also the threshold where people are continuously losing their lives, not only due to the epidemic that we are facing but also due to the lockdown which has made people strive in hunger and also imposes plausible famine. The present scenario in relation to coronavirus is of such a nature that there is a need to regulate the steps of the government at this juncture and to provide a structural-plan by which people who seek any assistance can get the same; furthermore, such assistance should not only be with regard to timely availability of food but also with the easy migration of the illiterate or the working class people.
Hence, there is an urgent need to muster all legal provisions in a unitary integrated and over-arching public health legislation so that the implementation of response to an epidemic crisis can be strengthened, controlled and monitored.
References
- https://www.livelaw.in/know-the-law/epidemic-diseases-act-1897-the-123-year-old-law-invoked-to-combat-covid-19-explainer-154218
- https://lawcorner.in/doctrine-of-repugnancy/
- http://www.legalserviceindia.com/legal/article-1875-historical-background-in-enacting-the-epidemic-diseases-act-1897-and-its-application-to-fight-covid19-pandemic.html
- https://thewire.in/history/colonialism-epidemic-diseases-act
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