COVI’D 19 AND THE 123 OLD LEGISLATION
Akanksh Deekonda
The author of this article is a Law Student, National Law Institute University, Bhopal.
In times of COVID-19 pandemic,
which has halted not just commercial transactions but also lifestyles[i],
the Indian Government took relevant steps to avoid the mass spread of the
virus, read out the preamble of the Epidemic Diseases Act and got to work.
The colonial-era act, all of 123 years old, has once again come to our
rescue. The Epidemic Diseases Act of 1897 (the "Act”) was
put in place due to the mass spread of the bubonic plague outbreak in Mumbai
(then Bombay).[ii] The plague said to have
spread through rats,[iii] killed hundreds of
people per week in Mumbai.
Albeit the British colonial Government was said to have cleverly used
the Act to imprison freedom fighters, the Indian Government is using the Act as
a weapon to fight the novel virus and rightly so. While the Central
Government’s powers are limited under the Act, it is the unity of various
states in the country that has brought the Act in the forefront. Among other
states, Karnataka,[iv]Maharashtra,[v]Delhi[vi] and
Kerala[vii]have
issued advisories on management and brought into place 'COVID-19 Regulations,
2020' ("Regulations”). Vide these
Regulations, states have exercised their powers under the Act to force
employees of private establishments/ industries/factories/shops etc. to stay at
home in the present times, to treat them as ‘on duty’; to stop all
construction work immediately; to shut night clubs and weekly bazaars etc.
Epidemic Diseases Act, 1897
The primary object of the Act is to prevent the spread of epidemic
diseases. This act empowers both the Central Government and the State
government(s) to issue directions which will prevent the spread of these
epidemic diseases.
The Act in total comprises four sections and is among the shortest in
India after the India Majority Act, 1872.
a) Section 2 of this Act which gives the
State Governments to direct and take the special measure(s) and it also
prescribes necessary regulations when the epidemic disease has outbroken. It
states that if the State Government thinks that if other Acts are insufficient
for the said purpose, it may take such measures by way of a public notice to
prescribe temporary regulations for the public/class of persons to observe. The
Regulations mentioned above have been enacted under Sections 2,3 and 4 of the
Act.
b) Section 2A of this Act which gives the
Central Government to take all the necessary actions and measures to pass
regulations regarding nay inspection of the ship arriving or leaving India and
for the detention of any person intending to sail if India or any part of India is threatened with
and Central government has enough substantive evidence regarding that of the
Epidemic disease outbreak. The ordinary would be insufficient or inappropriate
during this time.
c) According to Section 3 of the Act deals
with punishing the person for violating the regulator measures that are taken
by the government under the Indian Penal Code. Any person who disobeys an order
or regulation made by the government under the Act shall be punished following
Section 188 of the code which punishes for disobeying an order promulgated by a
public servant. Disobedience by issuing a direction which is passed by a public
servant and “If any obstruction, annoyance or injury, or risk of
obstruction, annoyance or injury is caused by such disobedience which causes or
tend to cause”. It is punishable with simple imprisonment which may extend
up to a month and/or a fine of up to Rs. 200. However, if this disobedience “causes
or tends to cause danger to human life, health or safety, or causes or tends to
cause a riot or affray", it shall be punishable with imprisonment
extending up to six months and/or fine up to Rs. 1,000. Pertinently, violation
of the regulations passed under the Act due to the outbreak COVID-19 would
attract the latter punishment as it would tend to harm human life, health and
safety.
Additionally, it
is important to note that under Section 188, IPC, an intention to cause harm is
not relevant as mere knowledge of the order gives sufficient cause for
liability of committing the offence. Although an offence under Section 188, IPC
is cognizable and bailable, courts will not take cognizance by merely filing an
FIR. A complaint must be filed by the concerned public officer under Section
195 of the Code of Criminal Procedure, 1973 (“CrPC”).
Non-compliance of the provisions of Section 195 of CrPC may lead to the
proceedings being quashed as held by the Patna High Court in the case of Raj
Mangal Ram v State of Bihar[viii]. The said case
was concerning certain directions issued by the District Magistrate of
Muzaffarpur for implementation of the 'anti-Kalazar’ scheme.
In a judgment
passed by the Orissa High Court in 1963 in the case of J. Choudhary v
The State[ix],
the question before the High Court was whether the refusal of the doctor to get
himself vaccinated against cholera following the regulations passed by the
State Government would be punishable under Section 3 of the Act. The Orissa
High Court answered the said question in the affirmative and held that the
intention of the said doctor was irrelevant, his disobedience in itself was
punishable under the Act.
d) Section 4 of the Act protects public servants
from legal action while acting in good faith under the provisions of the Act.
While discussing the ambit of Section 4, the Calcutta High Court in 1904 in the
case of Ram Lall Mistry v R.T. Greer[x] held that
omission to pay compensation as prescribed under the regulations passed under
the Act would not be protected under Section 4.
Provisions of the IPC attracted in such
scenarios
In addition to Section 188, certain other provisions of the IPC
relating to public health and safety may also be attracted during the outbreak
of an epidemic disease.
- Section
269 of the IPC prescribes punishment for negligent actions which may
spread infection of any disease, thereby threatening human life,
punishable with imprisonment which may extend to six months and/or fine.
- However,
pertinently, Section 270 is a more serious offence than the one listed
under Section 269. It punishes malignant actions which may spread any
disease dangerous to life. The punishment under this section may extend to
two years of imprisonment and/or fine.
- Section
271 of the IPC prescribes punishment for disobeying quarantine rule. Such
punishment may extend to six months imprisonment and/or fine.
Implementation of the above IPC provisions can be well seen in one
such order passed by the Government of Kerala imposing lockdown in the State on
March 23, 2020.[xi]Additionally, the orders
passed by the State Governments of Haryana, Maharashtra, Telangana[xii],
etc. state that disobeying such order shall result in inter alia punishment
under the Act, i.e. Section 188 of the IPC.
Presently, FIR has been lodged against a singer for negligence and
disobedience of an order passed by a public servant under Section 188 as well
as Sections 269, 270 and 271 of the IPC based on a complaint filed by the chief
medical officer.[xiii]According to reports,
141 cases have been registered under Section 188 of the IPC in Mumbai.[xiv]
The Present Times
In the present times, although the Act is used to contain the outbreak
of the novel coronavirus, it strikes a chord that the Act lacks reflections of
modern-day realities of the spread of diseases. The Act also loses the race in
covering an effective framework to respond to an outbreak of such a disease,
more so that the four sections in the Act don't envisage the very definition of
an 'epidemic disease’. However, the Indian Government
did take notice of the fact and had introduced a bill in 2017 called the ‘Public
Health (Prevention, Control, and Management of Epidemics, Bio-terrorism and
Disasters) Bill’ (“Bill”). The said Bill was to
repeal the Act; however, even after three years, it is yet to see the daylight.
The Bill empowers state government and other authorities to take such
measures to prevent, control and manage public health emergency, inter
alia quarantine persons exposed to such a disease; ban or regulate
purchase/transport/distribution of any material containing toxic substance; and
disseminate such information as deemed appropriate and take relevant actions
including the closure of markets, various institutions and social distancing.
The Bill also lists down more than 30 diseases as epidemic-prone diseases such
as bird flu, dengue, chikungunya, malaria, kala-azar etc.
Conclusion
Today, we can reasonably presume that the Indian Government will take
steps in regulating the spread of epidemics and will bring forth comprehensive
legislation which shall take into consideration the modern-day realities and
control measures for the spread of such diseases.
[ii]https://www.deccanherald.com/national/west/covid-19-epidemic-law-has-links-to-bombay-plague-814503.html
[vi]
https://main.sci.gov.in/pdf/cir/covid19_14032020.pdf pages 3-6
[xiii]https://economictimes.indiatimes.com/news/politics-and-nation/singer-kanika-kapoor-who-tested-postive-for-coronavirus-booked-for-negligence/articleshow/74741688.cms
[xiv]https://mumbaimirror.indiatimes.com/police-registers-178-cases-under-ipc-section-188-for-violation-of-prohibitory-orders/articleshow/74816859.cms
Comments
Post a Comment