Emergencies and disasters, generally throw unique challenges to the government
because of their unpredictability. Whatever may be the other requirements but
the response must include a coordinated approach between the governments at the
local, state and union levels.
The current situation demands no less than this.
A few days back, the Prime Minister announced lockdown to contain the spread of
COVID-19. But there were people who did not comply with the orders. A legal
action is expected to be taken against the offenders under the Epidemic Diseases
Act, 1897. They are likely to be punished according to section 188 of the
Indian Penal Code, 1860.
But these are uncertain situations under which adopting the normal procedure of
law could prove to be a disaster for a lot of people. There are skirmishes
around the legality of the punishments that are being given to the people not
complying with the government orders.
The article deals with this very point. It
very broadly deals with the provisions of the Epidemic Diseases Act and also
provides some suggestions for its better functioning. The matter of scuffle
between section 188, IPC and section 195, CrPC is also looked into.
The Epidemic Diseases Act, 1897:
Brief origin of the Act:
The Act was introduced by the colonial government to tackle the bubonic plague
which spread in the then Bombay Presidency in 1890's.The governor general of
colonial India at that time conferred the local authorities with special powers
to implement the measures necessary to tackle the disease. Using the powers
conferred on to them by this Act, the colonial authorities used to search for
suspected plague cases in homes and among the passengers.
They even forcibly
segregated, evacuated and demolished the infected places. Public meetings were
disrupted, assembly of crowds prevented, festivals were banned and pilgrimages
were halted. There was alleged humiliation of and violence against women that
gave rise to concerns among the citizens, and even riots were reported in some
Powers of the central and state governments under the act:
It is a 1-page Act consisting of 4 sections with the aim of providing better
protection and prevention from the spread the 'Dangerous Epidemic Diseases',
though this term is not defined anywhere in the act.
Section 2 of the Act
describes the powers of the government which can be put down as follows:
Once the state government is satisfied that the state or any of its part is
threatened with the outbreak of a dangerous epidemic disease; and if it thinks
that the existing provisions of the law are insufficient for containing it, only
then the state may empower or require any person to take measures.
a public notice, it can prescribe some temporary regulations to the public so
that people may observe them. The state government may prescribe regulations/
guidelines for the purpose of:
- Inspection of the persons travelling by railway or through any other
- And the segregation in hospitals, temporary accommodations or otherwise,
of the persons who are suspected with being infected of any such disease by
the inspecting officer.
The act was amended in 1956 to provide the central government with the power to
prescribe regulations and impose restrictions in whole or any part of the
country to control and prevent the outbreak of deadly diseases. Health is a
state subject but by invoking section 2 of the Act, advisories and directions
given by the Ministry of Health and Family Welfare are enforceable in whole of
An ordinance was promulgated on April 22, 2020 which seeks to amend
the Act. This was done with the purpose to include protections for the
healthcare professionals who combat the epidemic diseases and to prevent the
spread of such diseases.
The Central Government is empowered through Section 2A of the act:
- To inspect any ship leaving or arriving at any port
- For the detention of any person intending to sail therein, or even
Some of the state and union territories have also issued emergency measures in
accordance with the Epidemic Disease Act to tackle with COVID-19.
Section 3 of the Act:
- The Maharashtra Epidemic Diseases COVID-19 regulations, 2020
- The Delhi Epidemic Diseases COVID-19 regulations, 2020
- Punjab Epidemic Diseases COVID-19 regulations, 2020
- Himachal Pradesh Epidemic Diseases COVID-19 regulations, 2020
Section 3 of the Act declares that any person who disobeys any regulation or
order under made under this particular Act shall deemed to have committed an
offence which is punishable under section 188 of the Indian Penal Code, 1860.
Section 188, IPC imposes punishment on a person who disobeys an order which is
promulgated by a public servant.
However, the punishment is divided into two
- Disobedience of the order accompanied with the happening of or even the
risk of obstruction, injury or annoyance, is punishable with simple
imprisonment up to a period of one month and/fine of up to Rs. 200.
- When this disobedience is accompanied with the possibility of danger to
human life, health or safety, or with the happening of or even the risk of a
riot or an affray, it is punishable with imprisonment of up to 6 months
and/or fine u to Rs. 1000.
Before moving any further, a brief understanding of section 188, IPC is
required. To be punishable under this section, the order has to for a public
purpose and that too by public officials. Illustration: An order is promulgated
or brought into public notice by a public servant who is lawfully empowered to
do so. The order directs that a religious procession must not pass through a
particular street. B knowingly disobeys the order which causes danger of riot.
Therefore, B committed the offence which is defined in this section. Another
example is of an order commanding an assembly of 5 or more persons to disperse.
Another requirement is of evidence which shows that the accused has knowledge of
the order which he has disobeyed or which he is charged. Mere disobedience of
the order is no offence in itself; rather it must be proved that it has led to
certain consequences. 'Mens Rea' or 'guilty mind' is not a condition under this
Applicability of section 188, IPC at the time of lockdown
According to the first schedule of the Code of Criminal Procedure, 1973, section
188, IPC is a cognizable and a bailable offence. The common procedure in these
cases is to arrest the accused without a warrant, register an FIR under section
154, CrPC and investigation by the police. Eventually, a final report is
submitted after the completion of the investigation. On the basis of this
report, the court may start trial after taking cognizance.
This procedure and the complexities associated with it can be understood better
through a recent example. A PIL titled Vikram Singh v. Union of India was
filed in the Supreme Court seeking to quash the FIR's registered under section
188, IPC for lockdown violations. The petitioner argued that section 195, CrPC
bars the filing of an FIR as it bars the court to take cognizance of any offence
which is punishable under section 172-188 of the IPC except on a written
complaint of the public servant concerned (or to some other public servant to
public servant to whom he is administratively subordinate).
There is a clear conflict between section 188, IPC and section 195 CrPC as under
the former, the police can register an FIR and then follow the usual procedure.
But, under the provisions of the latter, the court cannot take cognizance of the
offences punishable under sections 172-188of the IPC till the time a written
complaint has been given to the court by a public servant concerned.
Singh v. State
it was held that there is no restriction on the exercise of
statutory power by the police in the matters related to arrest, investigation
and giving the final report. On the other hand, in Jeevanandham v. State
was held that the court take cognizance just on the basis of charge sheet and
therefore, the whole exercise of registering FIR, investigation and final report
Trying to resolve the conflict:
Till now, the problem seems to arise when we adopt the usual approach while
dealing with an offence punishable under section 188, IPC. This is due to the
bar/ embargo created by section 19(1) (a), CrPC. To resolve this conflict, a
deviation from the usual procedure is required i.e. once an offence under this
section is committed, then the registration of FIR's, investigation and final
report could be carried out in the usual manner.
However, along with this, the
public officer who promulgated the order shall too give a complaint to the court
in writing. But according to the Jeevanandham case, the High Court doesn't seem
to be acting of this suggestion, even when it seems to be apt in the current
Another logical way of approaching this conflict is when the police officer
treats the written complaint submitted by the public servant to the magistrate
an as informal complaint given to the police officer himself as FIR; then start
the preliminary investigations and keep the findings with him. He can provide
findings to the court only when it orders inquiry/investigations into the
What's worth mentioning is that, in the current scenario when the courts are not
fully operative, it's not possible for the concerned public servant to approach
the court and submit his complaint in writing. In such a case, the public
servant may give an informal complaint to the police. And then police prepares a
preliminary informal report of the investigation conducted in the matter. When
the time comes to practically approach the courts, the public servant may give
the formal complaint in writing along with the findings of the preliminary
investigation conducted if any.
Thereby, considering the importance of time, the preliminary investigation done
by the police right after receiving an informal complaint is much better than
the investigation done in the regular process. The problem which arises for the
police here is that being both a complainant as well as an investigator may lead
to the argument that the police are biased. But in whichever case, the ultimate
authority to decide on the matter lies with the court.
superior officer (mentioned in section 195 (1) (a)) may supervise the same and
prevent any arbitrariness and unfairness. Even in the case of any irregularity,
he court is authoritative enough to reject the findings of the investigation and
can also order a fresh investigation. Adopting this approach, both the
provisions can operate together by following the rule of harmonious
The Act is regulatory in nature and lacks a specific focus from the point of
view of public health. The duties of the government in relation to controlling
and preventing the epidemic are nowhere described in the Act which surely forms
the basis of ineffectiveness of the current policies by the government. People's
interests are not taken onto consideration. It is more or less like a guidance
document without containing any clear executive instructions.
A well structured
law needs to be laid down. The required help can be taken from some of the
already existing legal provisions in our country including the Indian Penal
Code, 1860, Livestock Importation Act, 1898, Indian Ports Act of 1908, Aircraft
Rules of 1954 and the Drugs and Cosmetics Act of 1940. The task of combining all
these legislations including a single effective one, though challenging could
prove to be of great help for future similar situations. For the purpose of
imposing penalties upon people in these uncertain situations, various provisions
of the IPC and CrPC need to be harmoniously constructed for the better good of
There is a dire need to strengthen legal framework in order to control and
prevent the spread of deadly diseases such as the COVID-19 in India. Though most
of the states have developed their own public health laws and some amended the
provisions of their Epidemic Diseases Act, these acts vary in quality and
content. Thereby, India requires an integrated, comprehensive, well-structured
and actionable law for preventing such outbreaks. Also, the approach needs to be
people-centered and rights-based.
- The Epidemic Diseases Act, 1897 (Act 3 of 1897)
- The Indian Penal Code, 1860 (Act 45 of 1860), ss. 188
- The Code of Criminal Procedure, 1973 (Act 2 of 1974), ss. 195
- Rakesh PS, 'Indian Journal of Medical Ethics'
(2016), https://ijme.in/articles/the-epidemic-diseases-act-of-1897-public-health-relevance-in-the-current-scenario/?galley=html accessed
on 25 June 2020.
- Writ Petition (Criminal) Diary No(s). 10953/2020
- (1998) 2 SCC 391
- Crl. OP (MD) No. 1356 of 2018
Award Winning Article Is Written By: Ms.Srishti Yadav
Authentication No: SP125401919570-11-0921