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CBRN Emergencies: How India is equipped legally

CBRN ( Chemical, Biological, Radiological and Nuclear) emergencies are now not new to Indian or world citizenary. When whole of the world is grappling with such threats and more particularly of the kind of Biological and chemical emergencies, then weakness of regulating laws is thwarting and painful.

Today the world is struggling to survive against Wuhan originated Corona virus. This is not only a panademic but a biological emergency for which extraordinary arrangements are needed. When it comes to applicable laws of land to handle such situations, India is lagging behind to meet the requirements of such challenges. CBRN emergencies had been recognized world wide long ago and accordingly rules and regulations were framed by these nations unlike India where government is still dependent on a stone age old colonial epidemic Act.

The main legal weapon the government possesses today is the Epidemic Disease Act of 1897, a hurriedly drafted short legislation to stonewall the bubonic plague that devastated life in Bombay in 1896, forcing people to migrate out of the city. 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.

Health is a state subject, central government’s role could, at best, be advisory and coordinating in nature, since section 2 of the Act only empowers a state to inspect people and segregate suspected patients. The only power the centre derives from this colonial law is on inspection of any ship or vessel leaving or arriving at any port that comes under its jurisdiction. The Act does not even mention airports. Obviously the imagination of Aeroplane 123 years ago was not possible.

The one page Act is mainly consists of section 2 and 2A( 2A was added in 1920 by way of amendment). Section 2 gives power to the state to regulate and segregate the subjects in state and for inspections of railways. Section 2A mandates union government to inspect and regulate the movements of water vessels and ships. The Act is silent on air traffic which has become a major source of conveyance and transmission of biological or chemical agents thereby.

Out of total 4 sections in this Act, the only section which speaks about the penalty is section 3. As per section 3, if any person disobeys the regulation imposed by state shall be liable for punishment under section 188 of Indian Penal Code 1860. This means that the epidemic Act itself does not call for any punishment, the only punishment prescribed under section 3 is to invoke the section 188 of Indian Penal Code. Hence ,this Act is handicap in itself when it comes to its violation.

Moreover section 188 of IPC is not a specific provision made to deal with the menance of epidemic or any other diseases. Section 188 comes under chapter X, which deals with contempt of lawful authority of Public Servants.

As per section 188 of Indian Penal Code

Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes to tender to cause obstruction, annoyance or injury, or risk of obstruction, annoyance of injury, to any persons lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both;

and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."

From the section 188 of Indian Penal Code, two things are apparent. One, this section is very wide and broad due to which each and every kind of disobedience of public authority is criminal in nature. It is not specifically designed to mitigate the evil of any pandemic. Secondly, the quantum of punishment is quite meagre, that is only one month and in case of danger to human life due to such disobedience, then two months. Such a little punishment can't act as deterrence for quarantine breakers who take the life of thousands of others at stake.

Now if we see the Indian Penal Code 1860 for the legal cement to seal the leakages of legal appratus in case of CBRN emergencies, then we get sheer disappointment. Three sections under chapter XIV of this code which may be termed some relevant with the present scenario of biological emergency are section 269,270 and 271.

Section 269 and 270 mandates for punishment of two months and six months imprisonment respectively if any person negligently or malignantly spread the infection of infectious diseases. Section 271 is about punishment to quarantine breakers and the prescribed punishment is six months imprisonment. Moreover, section 271 is about quarantine of water vessels and ship. The 1860 Act of Penal Code was drafted by Lord Macaulay before 160 years.

Though much of the part of Penal Code is still very relevant in Indian scenario, but when technologies have advanced to a great extent, then expecting every solution from 160 years old colonial law is laughable. These laws have become dead letter and are no more in a position to deter the violators.

Now, one recently passed bill that is Disaster Management Act 2005 (hereinafter called DM Act), is a law on which India can boast of slightly.

The objective of DM Act is to build a safe and disaster resilient India by developing a holistic, proactive, multi-disaster oriented and technology driven strategy through a culture of prevention, mitigation, preparedness, and response, National Policy on Disaster Management (NDMA, 2009) was framed by National Disaster Management Authority and approved by the Union Cabinet on 22nd October, 2009 under the Ministry of Home Affairs, Government of India.

Under this Act a large numbers of authority at centre, state and district level under chair of prime minister, chief minister and district magistrate respectively have been made to directly deal with disasters. Penal provisions are also made for violators. The DM Act has given the power to state to use any resources of nation including public and private taking in its possession at the time of natural or any man made local or national calamity. For the purpose of its implementation, national disaster response force (NDRF) is also constituted. By and large, DM Act is ample to cover each and every kind of disaster.

The stated object and purpose of the DM Act is to manage disasters, including preparation of mitigation strategies, capacity-building and more. But the problem with this Act is that it is not subject specific and hence failed to assign the specific responsibilities to specific persons. In the popular imagination, a disaster is usually associated with a natural calamity such as a cyclone or an earthquake.

Even the definition of a disaster in section 2 (d) of the Disaster Management Act states that a disaster means a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man made causes….

The definition of disaster as such does not include such out break of diseases. To address the current epidemic outbreak, the central government has to include the Covid-19 outbreak as Notified Disaster as a critical medical condition or pandemic situation.

The NDRF(National disaster Response Force) is not specifically trained for CBRN emergencies. These forces are trained for calamities which are very common in India like floods or earthquakes. The training of such forces to deal with CBRN emergencies is at very nascent stage.

Covid 19 is a biological emergency for which nation is little prepared. Responsibilties are not fixed due to any comprehensive policy or law on CBRN Emergencies. In the word of technology and industrilisation, Corona attack is an eye opener. Much more is waiting to cause catastrophe in field of chemical, biological, radiological and nuclear emergencies.

This is high time that parliament should interfere setting the political issues aside to frame the nation policy or to pass a complete Act to deal with CBRN emergencies. The present laws are old and insufficient to tackle with such national emergencies. The new and comprehensive laws will remove the state of confusion at every level in which the adminstration is presently engulfed with.
Only a few agencies of India are working on CBRN emergencies like Institute of Nuclear Medicine and Allied Sciences, a lab of DRDO.

But they too are not in a position to develop any national level emergency Management agenda due to lack of any comprehensive law on CBRN Management. I hope, parliament of India will look towards this most important lacunae in India legal system and will sort it out for larger benefits for its people.     

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