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
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
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.
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
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
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
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
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,
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
- 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.
- 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
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
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
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
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
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.
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
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,
Email: [email protected], [email protected]