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.
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
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:
- 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.
- 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
- 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
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.
more comprehensive change to the act can be made by implementing the following:
- 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.
- 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.
- 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.
- Epidemic diseases act, 1897
- Ministry of Law and Justice, 2020
- Law Commission of India, 2014
- Drugs and Cosmetics Act, 1940
- Patents Act, 1970
- Indian Penal Code, 1860
- National Disaster Management guidelines, 2007