Historical background in enacting the Epidemic Diseases Act, 1897 and its application to FIGHT COVID19 PANDEMIC

On March 24, 2020, Prime Minister of India Narendra Modi announced a nation-wide lockdown, from Mar. 25, 2020 to April 14, 2020 in the backdrop of the Covid-19 outbreak to enable the concept of social distancing to contain the spread of the virus. Additionally, the Central Government also found that consistency in the application and implementation of various measures across the country has become necessary to ensure maintenance of essential services and supplies.

The Ministry of Home Affairs invoked Section 6 (2)(i) of the Disaster Management Act, 2005, and issued an Order on March 24, 2020, directing the Ministries or Departments of Government of India, State and Union Territory Governments and authorities to implement the measures laid down in the Central Order.

The measures include the shutting of all Non-essential Government Establishments, all Commercial & Private Establishments, Industries, Transport by Air, Rail & Road, Hospitality Services, Educational Institutions, Places of Worship, Political Gatherings, etc. Certain exceptions for Medical Staff, Journalists, Petrol Pumps, Essential Stores, etc have been provided for. The District Collectors are to be the incident commanders in each District who would also decide on who should be issued exception passes. Downstream, in several States, the competent authorities have issued orders under Section 144 of the Code of Criminal Procedure, 1973, prohibiting more than five people from assembling in public places.

The ongoing nationwide lockdown in the wake of the global pandemic caused by the novel COVID-19 has suddenly brought forth an interesting colonial legislation into the limelight i e the Epidemic Diseases Act of 1897, a two paged law that has remained largely unchanged for its 123 years of existence. That is, we are controlling a 2020 COVID-19 pandemic using a law that was developed when people hadn't yet begun using radio-sets and vitamin supplements didn't exist. In such a scenario it might be helpful to know a bit more about the origins and history of this legislation.

The Epidemic Diseases Act, 1897 gives power to the Government (both State & Centre) that if at any time the Central or State Government is satisfied that India or the State, or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease, the Central or State Government, if it thinks that the ordinary provisions of the law for the time being in force are insufficient for the purpose, may take, or require or empower any person to take, such measures and, by public notice, prescribe such temporary regulations to be observed by the public or by any person or class of persons as it shall deem necessary to prevent the outbreak of such disease or the spread thereof, and may determine in what manner and by whom any expenses incurred (including compensation if any) shall be defrayed.

The 1896 bubonic plague epidemic of Bombay (now Mumbai), which began in September that year and gradually spread to most parts of the sub-continent, is a well-known major event from colonial India. As has been the case with epidemics, panic and scapegoating formed a major part of the societal response, and extreme measures dominated the administrative response.

On January 19, 1897, about four months after the plague was identified in Bombay, Queen Victoria delivered a speech to both houses of the British Parliament, and in which she said she had directed [her] Government to take the most stringent measures at their disposal for the eradication of the pestilence.

A week after Victoria's address, the Epidemic Diseases Bill was introduced in the Council of the Governor-General of India in Calcutta (now Kolkata) for the better prevention of the spread of dangerous epidemic diseases.

The Member who introduced it, John Woodburn, recognised that the powers mentioned in the Bill were extraordinary but necessary, especially that the people must trust the discretion of the executive in grave and critical circumstances.

Another Member said that if the strict measures taken in the interests of public welfare caused any hardship, they should be borne cheerfully by people. There was some critique of the Bill's hurried passage since little time had been earmarked for feedback from the general public. The Government maintained that the Bill's vague wording was meant to benefit Local Government Bodies that could potentially apply the Act in a way that suited their particular conditions.

Thus the Epidemic Diseases Act, 1897 had an authoritarian streak to it right from the beginning- first in terms of the ideas that powered it- public must trust the discretion of the Government- and second, in terms of the wide-ranging and almost unlimited powers it conferred on local authorities.

According to conventional medical knowledge of the time, the plague's spread could be prevented through measures like isolation of affected persons, cleansing houses, destroying or disinfecting clothes, and rigorously screening for signs of the plague (like swellings on some parts of the body). It was for the legally smooth implementation of such considerably drastic measures that this Act, and the immense power for Government personnel, were considered necessary.

With debate over it lasting only a day, the Epidemic Diseases Act was passed on February 4, 1897. In a chronology that we are all too familiar with in contemporary India, there was at first a near-unanimous approval of the British Government for what can be described as finally doing something for the problem at hand, only to later turn into disillusionment and rage when it dawned upon people that the cure was worse than the sickness. The Marathi nationalist leader Lokmanya Tilak was one such individual: he welcomed the Act at first but later became one of its fiercest critics.

Section 2A, 3 & 4 of the Epidemic Diseases Act, 1897 reads as under:

2A - Powers of Central Government -

When the Central Government is satisfied that India or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease and that the ordinary provisions of the law for the time being in force are insufficient to prevent the outbreak of such disease or the spread thereof, the Central Government may take measures and prescribe regulations for the inspection of any ship or vessel leaving or arriving at any port in the territories to which this Act extends and for such detention thereof, or of any person intending to sail therein, or arriving thereby, as may be necessary.

3. Penalty:
Any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under section 188 of the Indian Penal Code (45 of 1860 ).

4. Protection to persons acting under Act. No suit or other legal proceeding shall lie against any person for anything done or in good faith intended to be done under this Act.
In particular, Section 2A of the Act empowers the Central Government to take measures and prescribe regulations for the inspection of any ship or vessel leaving or arriving at any port in the territories to which this Act extends and for such detention thereof, or of any person intending to sail therein, or arriving thereby, as may be necessary.

Similarly, the State Government has the power to take, or require or empower any person to take, such measures and, by public notice, prescribe such temporary regulations to be observed by the public or by any person or class of persons as it shall deem necessary to prevent the outbreak of such disease or the spread thereof…, under Section 2 of the Act.

The provision also provides that the State Government may take measures and prescribe regulations for the inspection of persons travelling by railway or otherwise, and the segregation, in hospital, temporary accommodation or otherwise, of persons suspected by the Inspecting Officer of being infected with any such disease.

The use of words like such regulations as it deems fit confer extremely wide discretion on the Government to inspect any person/place who/which it suspects to be affected. This wide discretion may also be used to devise penal provisions against disobedience of potentially whimsical regulations framed by the Government, in addition to initiating criminal proceedings under Section 188 of Indian Panel Code, 1860, as provided under Section 3 of the Act; and any action taken under Act is protected by a good faith clause as per Section 4.

It also makes disobedience of any regulation or order made under this Act a punishable offence meaning thereby, that it provides for the protection of persons or officials acting under this Act as no suit or other legal proceeding can be initiated against any person for anything done or in good faith intended to be done under this Act.

While experts are debating over the relevance, legal validity and sanctity of this Act belonging to colonial era, it would be interesting to look at the historical context in which the aforesaid Act came into being and the subsequent reactions generated by it.

Colonialism and medicine always shared an inextricable link. Maintenance of health at distant and unknown lands was one of the major concerns of the early colonisers. That is why early naval fleets from Europe had a surgeon on them who was responsible not just for looking after the health of those on the ships during exploratory tours, but also the first one to report about the flora, fauna and resources of these distant lands.

However, with the gradual expansion of Colonial Rule medicine, medical practitioners assumed a new role in the consolidation of the Empire, so much so that according to some scholars, western medicine in India became synonymous with ‘colonial medicine.' In other words, medicine and related issues in the Nineteenth & Twentieth Century India cannot be studied by neglecting the colonial context.

Incidentally, medicine became handy in satisfying both the short-term as well as the long-term needs of Colonial Rule. The short-term needs included proper maintenance of the health of European Officials in the relatively ‘hostile' tropical climate of India. Nonetheless, medicine was significant for the Colonial Government not just medically but also culturally in satisfying its long-term needs. It is this cultural dimension of medicine and its complexity in creating Colonial hegemony, medicine was ‘acting both as a cultural agency in itself, and as an agency of western expansion.' In such works, western medicine has been characterised as ‘the scientific step-child of Colonial domination and control'.

Actually, the Colonial Health Policy tended to colonise the ‘Indian body' thoroughly. This became particularly evident in the case of anti-plague measures adopted by the Colonial Regime towards the end of the Nineteenth Century. The anti-plague campaign ‘was directed more against the natives than the plague bacillus.' The Epidemic Diseases Act, which was passed in February 1897 in the wake of the outbreak of the bubonic plague in India (particularly in the Bombay Presidency), gave draconian powers to the Colonial Government.

While introducing the Epidemic Diseases Bill in the Council of the Governor-General of India in Calcutta for ‘better prevention of the spread of dangerous epidemic diseases' John Woodburn, the Council Member who introduced it, himself considered the powers mentioned in it as ‘extraordinary' but ‘necessary'. Woodburn emphasised that people must ‘trust the discretion of the executive in grave and critical circumstances.'

The Epidemic Diseases Act, 1897 was last invoked in 2018 to prevent the spread of 'Cholera' in a Gujarat Village. It has also been invoked in cases of 'Dengue' and 'Malaria' in 2015 in Chandigarh and H1N1 Influenza in 2009 in Pune.

Some cases under the Epidemic Diseases Act, 1897

In a decision given in 1904, the Calcutta High Court discussed the ambit of the protection under Section  4. The issue was Whether the then Calcutta Corporation Chairman was protected from liability arising out a demolition of building carried out under the powers of Plague Regulation 2000 to prevent the spread of plague?. The Court noted that Regulation 14 of the Plague Regulation mandated that the Corporation should compensate the building owner. The omission to pay compensation is not protected under Section 4, the HC held (Ram Lall Mistry Vs R T Greener).

There is a reported decision from Orissa High Court, as per which a doctor was punished under Section 3 of the Act read with Section 188 Indian Penal Code for having refused to get himself inoculated against cholera. In view of outbreak of cholera in 1959, the Orissa Government had invoked the Act in Puri district.

The doctor, a practitioner of homeopathy, had refused to get himself inoculated against cholera saying that he had a conscientious objection against inoculation and that he had taken sufficient preventive homoeopathic medicine to protect himself against an attack of cholera. He also stated that he was of the view that inoculation was dangerous to human health and that inoculation would create reactions on the human body which might endanger human life.

The Court said that it was not concerned with the question as to Whether inoculation is injurious to health or not or else whether any other system of medicine provides a better remedy against attacks of cholera?

The simple question is whether the petitioner has contravened the provisions of Regulation 7 and 8. On his own admission he has contravened them and his guilt is thus established beyond doubt, held in J. Choudhury Vs The State, AIR 1963 Ori 216.

Power Under The Constitution Of India

Article 245 of the Constitution of India states that the Parliament or Central Government may make laws for whole or any part of India, and the State Government may make laws for whole or any part of the State. Article 245 lays the basis for the division of powers between the Centre and the State, whereas, Article 246 provides for the ‘Distribution of Legislative Subjects' between the Central and State Governments. It does so by creating Three Lists, enumerated in the Seventh Schedule of the Constitution, namely the:

• Union List
• Concurrent List, and
• State List

The Union List lays down the subject-matter on which Parliament has an exclusive power to legislate, similarly, the State List provides for matters on which the State Government has an exclusive power to legislate, and lastly the Concurrent List, provides for subject matter on which both, Central and State Governments, can legislate.

Constitutionally, the State Government is empowered to deal with matters related to public order and public health, listed in the state list Entry 1 & 6, respectively. However, Entry 29 of the Concurrent List empowers the Central and State Governments to legislate on matters pertaining to the prevention of an infectious or contagious disease spreading from one state to another. The entry does not limit the powers of the Legislating Authority to simply public order or health, but allows for any relevant legislation to be passed, so long that it is to prevent the disease from spreading across state jurisdictions.

Entry 29 of the Concurrent List reads:

29. Prevention of the extension from one State to another of infectious or contagious diseases or pests affecting men, animals or plants.

Since, both central and state government are empowered to legislate on an entry in the Concurrent List, a possible collision or inconsistency between the two legislations cannot be ruled out.

In order to address this concern, the makers of the Constitution of India provided for Article 254, which reads:

Article 254 - Inconsistency between laws made by Parliament and laws made by the Legislatures of States

1. If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by the Parliament, which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause.
    
2. the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

The Doctrine of Repugnancy, which is well explained by the Supreme Court of India in the case of M. Karunanidhi Vs. Union of India, 1979 AIR 898 deals with an event where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy.

Therefore, the Constitution of India acknowledges the primacy of parliamentary law over state legislation in the concurrent list. The operation of Article 254 the Constitution of India is not complex. The real problem that arises in practice is that of determining whether a particular provision in the order passed by the State is repugnant to the order passed under the Central Act. Fortunately, we have a catena of judicial decision taken by the Supreme Court, which lay down the rules for determining repugnancy.

Validity Of Order Passed By Central Government

As discussed above, the Central Government invoked the Disaster Management Act, 2005 to order a lockdown of the country. Similarly, State Governments invoked other Acts to address concerns pertaining to the spread of Covid-19. The Epidemic Diseases Act, 1897, empowers a State Government to prescribe temporary regulations to be observed by the public or any person to prevent the outbreak and spread of a disease.

Various States have invoked the Epidemic Diseases Act, 1897, to pass orders and guidelines on social distancing measures, closure of establishments and limitation on activity. While both orders deal with similar aspects, the State Governments' order finds its power enumerated under Entry 1 & Entry 6 of the State List, while the Central Government's power to pass power to pass the March 24, 2020 order seems to be derived from Entry 29 of the Concurrent List.

Any legislation under Entry 29 of the Concurrent List must necessarily deal with the prevention of highly infectious diseases that have the capability of extending beyond a State's border. India has seen more than 2301 positive cases as on date, and the number is only expected to increase as the country progresses into advanced stages of the spread. As has been seen globally, the pandemic saw a gradual increase in infections during the first few weeks and eventually escalated to a 60-100 percent increase or more in reported positive cases every day. Given the highly communicable nature of the disease and the large population of India, it seems logical for the central government to address the concern under Entry 29 in a unified manner, as opposed to State Governments implementing measures not coherent with one another.

The Disaster Management Act, 2005 was passed to enable the Central Government to provide a legal framework for setting up of a National Disaster Management Authority under the Chairmanship of the Prime Minister of India and not more than nine members nominated by him. While the Scheme of the Act does not specifically deal with the control of a pandemic like Covid-19, the powers of the NDMA under Section 6 of the Act can be broadly interpreted to give a unified command to the Central Government to effectively manage a disaster throughout India.

The term disaster' under section 2 (d) of Disaster Management Act, 2005 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'.

The Covid-19 outbreak is bound to be classified as a disaster under the Disaster Management Act, 2005, allowing the Central Government wide powers to deal with the pandemic by laying down policies, plans and guidelines for disaster management to ensure a timely and effective response to the disaster. Section 38 of the Disaster Management Act, 2005 casts a duty on the States to follow the directions of NDMA.

Moreover, Section 72 of the Disaster Management Act, 2005, provides that the provisions of the Act, will have an overriding effect on all other laws, to the extent that they are inconsistent. Therefore, the Order passed by the Ministry of Home Affairs, will override all State Orders and Municipal Orders to the extent that they are inconsistent with the Home Ministry's Order.

No definition of Epidemic Disease

Notably, the Epidemic Diseases Act, 1897 does not define what an epidemic disease is. The definition or description of a dangerous epidemic disease is not provided in the Act. There is no clear definition of whether an epidemic is dangerous on the basis of the magnitude of the problem, the severity of the problem, the age of the population affected or its potential to spread internationally.

The regulations under the Epidemic Diseases Act, 1897, requires medical practitioners to notify the public health authority about anybody with a communicable disease and disclose the identity of the person.

Criticism
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 own 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 mooted 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. It attempted to ensure a 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. The Bill adopted a rights-based approach and upheld the right to treatment and care. It clearly stated the public health obligations of the government.

It also mentioned the formation of public health boards at the national and state levels for smooth implementation and effective coordination. There are provisions for community-based monitoring and mention of grievance redressal mechanisms which would ensure transparency. However, the Bill could not get clearance in the Parliament and eventually lapsed.

Written By: Dinesh Singh Chauhan, Advocate - High Court of Judicature, Jammu.
Email: [email protected], [email protected]