Victory comes from prominent sacrifices
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.
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
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.
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
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
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.
|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
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
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.
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
- Entry 29, which mentions- Inhibition of the allowance from one State to another
of infectious or contagious ailments or pests affecting man, animals, or
- 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
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
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
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.
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 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.
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.