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British Regime Law imposed for Covid-19: The Epidemic Diseases Act, 1897

Victory comes from prominent sacrifices


Introduction
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. 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.
 

Outbreak Epidemic Pandemic
 
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. It is a disease that is limited to only some geographical extent. Ex: - AIDS, Ebola, smallpox, yellow fever, tuberculosis, and bubonic plague. 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.
 


Current Scenario

Presently, a two-page law with only 773 words in it, i.e., The Epidemic Diseases Act,1897 invoked by state governments and the National Disaster Management Act, 2005 invoked by the central Government on 24th March 2020 is in play.

The Disaster Management Act 2005 passed to provide a rapid response for situations like a catastrophe, mishap, calamity or significant occurrence in any area arising from natural or any human-made cause or by accident which results in significant loss of life of humans suffering, destruction of property, degradation of the environment under the Chairmanship of Prime Minister of India. Section 6 of the Act gives consolidated order to the central Government to effectively manage a disaster like situation throughout India.

The Novel Covid-19 outbreak classified as a disaster under the disaster management act,2005. It allows the central Government to make policies, plans, and issue guidelines and orders to tackle these situations. Moreover, states have to comply with the directions of the NDMA as provided in Section 38 of the disaster management act, 2005.

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?

  • Section 1 is for short title and commencement.
     
  • Section 2 provides the power to take special measures and prescribe regulations as to dangerous epidemic diseases.
     
  • Section 2A provides:
    When Central Government is satisfied that India or any part is visited or threatened by the breakout of any deadly epidemic disease and ordinary provisions law in force is insufficient to prevent the breakout of such disease or the spread; the Central Government may take measures and authorize actions for the scrutiny of any vessel leaving or arriving at any port in the regions to which this Act extends and for such detention thereof.
     
  • Section 3 is for retribution: - If any person violates an order under this Act. The person shall be supposed to have committed an offense punishable under section 188 of the Indian Penal Code (45 of 1860).
     
  • Section 4 - Protection to persons acting under act. No suit or any legal proceeding shall lie against any person for anything done or in good faith intended to do under this Act.
     

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
Till now, the cases of novel COVID-19 in India have crossed the estimated line and continue to increases every day. Furthermore, cyclone Amphan in the middle of this deadly situation has already caused much trouble, but with Prime Minister's statement that  no stone will be left unturned  people of India are in best hopes. Epidemic Diseases Act needs an immediate amendment, which will be the best for people. People of India have a much higher potential to fight with coronavirus and soon live in a new era of the century. Only god knows what will happen next. Let us hope for the best.

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