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Repealing the Epidemic Diseases act 1897: Need of the hour

With the cases of COVID-19 rising in India, the Government continues to rely upon the colonial era legislation, the Epidemic Diseases Act, 1897 to bring the situation under control. The Supreme Court, in a decision dated 17th November 2020, refused to adjudicate on the constitutional validity of the Act and remitted the matter to a High Court. This has spurred questions on the effectiveness of this British-era legislation, which may be deemed as archaic under the current circumstances.

The Epidemic Diseases act was introduced to be the British colonial government's answer to check the rapid proliferation of the lethal Bubonic plague in Bombay in the year 1896. The act comprises four sections only, which suggests it was more of a desperate measure driven by panic than a carefully planned out one, something that was common in the British Raj era.

Scheme of the act:
The second section of the act empowers the State governments to take measures and dictate ephemeral regulations as may be required to control an epidemic disease. Section 2A empowers the Central government to scrutinize any ship leaving or arriving in port and for the detention of any person sailing or arriving therein. Section 3 provides for penalty under Section 188 of the Indian Penal Code (IPC) for any individual disobeying the act. If any disobedience by a person materializes or tends to cause harm to human life, health or safety, then they may be punished with imprisonment upto six months and/or fine upto Rs 1,000. Section 4 specifies legal protection to individuals for anything done under the act.

The act in use during the COVID-19 pandemic A lot of states in India like as Delhi, Uttar Pradesh, Bihar and Maharashtra, had invoked the act enabling the government to isolate and quarantine people and filter the entry of people in the respective states. Empowered by the act, many states shut down schools, malls, gyms and institutions in order to mitigate the crisis.

Recent Amendment:
The Epidemic Diseases (Amendment) Ordinance was promulgated on April 22, 2020. The amendment was made to ensure the better protection of healthcare personnel engaged in battling the COVID-19 pandemic. It rendered acts of violence against healthcare personnel and damage to property, including a clinical establishment, quarantine facility or a mobile medical unit, during an epidemic punishable with imprisonment upto five years and fine upto Rs 2 lakh. Persons convicted of such offences will also be needing to pay damages to the victims.

The most obvious flaw in this age old piece of colonial legislation is the fact that the word 'Epidemic' has not been defined. This has left the legislation found wanting in clarity. This obscurity has led to the Government having special powers, but imposes no responsibility on them to invoke it within proper time. The act states that the Government may invoke its provisions whenever it is satisfied that ordinarily laws will not suffice. The word 'satisfied' here has an underlying ambiguity. The subjectivity that this term bears makes it susceptible to misuse and unjust invocation. It might be used as a tool to violate the rights of an individual.

The Aarogya Setu app of the Indian government traces and proctors the data of individuals who may have COVID-19. The Government has argued that this app is an essential and reasonable restriction on the right to privacy, as it is needed to control the pandemic, while critics have voiced their concerns over its possible use for surveillance. Issues regarding the fundamental rights of a citizen must be addressed and resolved with utmost clarity.

Also there is no provision pertaining to vaccines, which in today's world is of massive importance. Other legislations need to be looked at to bring a mandate in to look into the matters concerning vaccines.

Some of them are:
  1. Section 26B of the Drugs and Cosmetics Act. It empowers the Central government to control the sale, manufacture, and distribution of a drug that is necessary to meet the needs of an emergency arising due to an epidemic.
  2. Section 100 of the Patents Act. It states that the Central government has the power to allow anyone (such as specific pharmaceutical organizations) to use any patents or patent applications for the �purposes of government�.
  3. Section 92 of the Patents Act. It allows the Central government to issue a obligatory licence to manufacture the patented product without the consent of the patent holder in circumstances of national emergency or extreme urgency or in case of public non-commercial use.

The Epidemic Diseases act was formed at a time when vaccines were being newly discovered. Therefore it is understandable why there is no provision in relation to vaccines. But in today's world it is absolutely necessary.

It is stated that the punishment for disobeying the provisions of this Act is given under the Section 188 of the Indian Penal Code. The usage of section 188 is rather uncanny considering the availability of the sections 269, 270 and 271 which deal with any negligent actions that may spread diseases, malignant action that may spread diseases and disobedience of any quarantine rule respectively. Also the Section warrants either a six-month imprisonment or a thousand rupees fine.

This length of term would not help much in deterring people from causing harm. Moreover stricter punishments need to be put in place due to the fact that harm caused here might be accounted for in human lives. The recent orders issued by the Maharashtra, Haryana, and Telangana State governments with respect to the COVID-19 pandemic also refer to only Section 188.

The Patna High Court in Raj Mangal Ram v State of Bihar made the usage of Section 188 stricter viz. a mere FIR is not enough, but it must be submitted with a complaint filed under Section 195 of the Criminal Procedure Code as well. Hence the procedural facet of penalization under the Act is long-drawn, making a clear case for alternatives.

Solution The 248th Report by Law Commission of India, 2014 placed the Epidemic Diseases Act under the category of laws recommended for repeal by various commissions but not undertaken for repeal by the government. This suggests that the need for an overhaul of the act has now become necessary.

The recent Epidemic Diseases Act (Amendment) Ordinance, 2020 has made violence towards health care workers punishable by 7 years of imprisonment. Despite being a good initiative, it seems to be insufficient to counter the act's fallacies.

A more comprehensive change to the act can be made by implementing the following:
  1. The Indian Government may seek inspiration from the International Health Regulations released by the World Health Organization, which suggests the obligations of the Government and potential moves that they can make take to handle the situation. These regulations can help bridge the gap between modern international standards and India's colonial-era legislation.
  2. The Government must also attempt to rigorously enforce the National Disaster Management guidelines. The guidelines provide an overview of possible legal, financial, and administrative means to control a disaster enabling a smoother functioning of health workers.
  3. The Public Health (Prevention, Control and Management of Epidemics, Bio-Terrorism and Disasters) Bill of 2017 gives a definition of an epidemic and renders several other health measures. This Bill was much more comprehensive and modern and has efficient ways to handle a current Pandemic. The Bill increased the punishment for disobedience to 2 years and also increased the penalty to Rs. 10,000/- for the first offense and 25,000/- for succeeding offenses. These provisions would immensely benefit the Epidemic Diseases Act, 1897. It is of utmost importance that the provisions of this Bill are integrated into the Epidemic Diseases Act, 1897 via an amendment because it covers up most of the latter's shortcomings.

It has become conspicuous that India has been found wanting in creating an up-to-date, efficient legal framework to deal with a major crisis like an epidemic or a pandemic. The fallacies shown by the The Epidemic Diseases act 1897 clearly point at the need for a new comprehensive piece of legislation which would cater to the needs of the present. The use of brute force and oppressive measures will lead to rancour among the people. It is time to make amends and repeal this colonial era law and succeed it with a more comprehensive, modern, ethically sound piece of legislation.

  1. Epidemic diseases act, 1897
  2. Ministry of Law and Justice, 2020
  3. Law Commission of India, 2014
  4. Drugs and Cosmetics Act, 1940
  5. Patents Act, 1970
  6. Indian Penal Code, 1860
  7. National Disaster Management guidelines, 2007
Written By: Archisman Bhattacharyya.

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