AMENDMENT IN THE EPIDEMIC DISEASES ACT 1897 : THE IMPERATIVE OF A HOLISTIC LAW FOR FIGHT AGAINST HEALTH EMERGENCIES

  The Authors of this blog are Mr. Abhishek Tripathi, a student of 2nd year, BA LLB(H) at Lloyd Law College, Delhi NCR & Ms. Meghna D. Dhanwani, a student of 2nd year, BA LLB (H) at Kristu Jayanti College of Law, Bangalore

 

Introduction

COVID-19, the invisible killer, has put the world through unexpected ways of life. It has been months and, the old normal is beyond question while the virus still exists among us, and many countries are still in the quest of a vaccine. The current situations have affected every aspect of life and every sector of the economy. The legal aspect for all this is essential even during the pandemic. All measures taken to control the spread of the virus needs to be followed lawfully. Thus, the provision that plays an important role during these situations is the Epidemic Act, 1897[1]. This provision aims to provide preventive measures that will be enforced during epidemic and pandemics in order to minimize the spread of threatening diseases. 

The Epidemic Act, 1897: An Outlook

The Epidemic Diseases Bill was initially introduced in 1897 to control the spread of bubonic plague in Mumbai (Bombay). It was bought into existence to tackle various issues in India then, such as the over-crowded houses and unsanitary hygiene. The brief details on this provision have been mentioned below:

• Section 1 describes the title of the Act (The Epidemic Act, 1897) and says that it is applicable in the whole of India.
• Section 2 provides details on special measures that can be enforced during health emergencies, that includes 

                      i.        Granting special powers to the State Governments to handle the situations in their respective states and take preventive measures accordingly 

                    ii.        It also gives the State right to make regulations for the inspections of persons traveling through public transport and for the segregation of hospitals and temporary accommodations for the infected people. 

• Section 2A provides powers to the Central Government to take preventive measures to control the spread.  

                      i.        Advisories and directions of the Ministry of Health & Family Welfare can be enforced under Section 2 even if health is a State subject. 

                    ii.        It gives the Government right to inspect any ship that arrives or leaves any post and also the power to detain any person intending to sail or arriving in the country.

• Section 3 includes Penalties for disobedience during the epidemic that was set according to Section 188 of the Indian Penal Code. 
• Section 4 provides legal protection to the law implementing officers.  

It was not the only time in 1897 that this act was enforced later there were many emergencies when The ED Act was implicated, such as, Section 2 which was empowered during the Swine flu spread in Pune, 2009; Chandigarh in 2015 due to Malaria and Dengue outbreak.[2]

The Epidemic Act of 1897 was structured as per the requirements, 123 years ago and was effective in those times of epidemic. But today when our population has grown to an ample amount, increasing the complications and with an active deadly virus such as the COVID-19, unquestionably calls for the development and amendments of this Act.

The Epidemic Diseases (Amendment) Ordinance, 2020

The Epidemic Diseases (Amendment) Ordinance, 2020[3], was propagated on April 22, 2020. It was an amendment to the Act of 1897, which included important changes and amends according to the current issues faced in public. The revision of the same has been mentioned below:

• The Ordinance defines healthcare service personnel as a person who is at risk of contracting the epidemic disease while carrying out duties related to the epidemic. They include: (i) public and clinical healthcare providers such as doctors and nurses, (ii) any person empowered under the Act to take measures to prevent the outbreak of the disease, and (iii) other persons designated as such by the state government.                     
• The amendment ensures to mention and describe the ‘act of violence’ towards healthcare service personnel. Which includes:

                      i.        Harassment affecting healthcare personnel’s personal and work lives. 

                    ii.        Any kind of harm, injury, hurt, or danger to their life.

                   iii.        Imposing any kind of hindrances in the discharge of their duties.

                   iv.        Causing loss or damage to the property or documents of the healthcare service personnel. Where, Property is defined to include a: clinical establishment, quarantine facility, mobile medical unit, and other property in which healthcare service personnel have a direct interest, concerning the epidemic. 

• The new amendment also includes more powers to the Central Government as before they had the right to inspect any ship or vessel leaving or arriving at any port, and to detain any person intending to travel from the port, during an outbreak. The amendment now expands the powers of the central government to inspect any bus, train, goods vehicle, ship, vessel, or aircraft leaving or arriving at any land port, port, or aerodrome. Further, the central government may also regulate the detention of any person intending to travel by these means.

• The main intention of this Ordinance was to bring legal protection to the healthcare personnel and their property. Thus, this Ordinance specifies that:

                      i.        Commission or aim to commit an act of violence against a healthcare service personnel, or loss to any property during an epidemic is punishable with imprisonment between three months and five years, and a fine between Rs 50,000 and two lakh rupees. This offense can be compounded, by the victim with the permission of the Court. In case an act of violence against a healthcare service personnel causes grievous harm, the person committing the offense will be punishable with imprisonment between six months and seven years, and a fine between one lakh rupees and five lakh rupees. These offenses are cognizable and non-bailable.

                    ii.        In cases of compensation, the persons convicted of offenses under this provision will be liable to pay compensation decided by the Court and if the damage is caused to a property then the amount of compensation, to the victim will be twice the amount of the fair market value of the damaged or lost property, as determined by the Court and if the convicted person fails to pay the compensation, the amount shall be recovered as an arrear of land revenue under the Revenue Recovery Act, 1890[4].

                   iii.        The investigation for the cases registered under this provision will be done by police officers, not below the rank of Inspector, and it also particularly states that the investigation must be completed within 30 days from the date of registration of the First Information Report. Similarly, the trial or inquiry for the case must be settled within one year. If not, the Judge must record the reasons for the delay and extend the period, but the time period may not be extended for more than six months at a time.

                   iv.        During the prosecution of a person who has caused grievous harm to healthcare service personnel, the Court will presume that person is guilty of the offense unless the contrary is proved.[5]

Other Legal Provisions

 

Apart from the Epidemic Disease Act, 1897 and The Epidemic Diseases (Amendment) Ordinance, 2020, we also have some other germane legal provisions available which act as imperative of strong legal architecture against epidemics and pandemic like

COVID-19. A careful Contemplation of other legal provisions is necessary, for making well structured legal provisions to fight against these pandemics.

Some of these provisions include Section 269[6] and Section 270 [7]of Indian Penal Code, 1860. These Sections are part of Chapter XIV of IPC. It contains provisions for offences which affect the public health, safety, Morals, Decency and Convenience.

Section 269 states provisions for spreading and escalating of Infectious disease which are hazardous to life by some negligent act. If a person is found liable under the same then he/she will be subject to a punishment of either an imprisonment of maximum 6 month or with fine or both.

Section 270 states that whoever with an deliberate intention or malignantly does anything which results in spreading and escalation of a infectious disease can be subjected to a punishment which include maximum imprisonment of 2 years or fine or both.

Both these sections are being used from a long time to punish those who disobey the public order issued for the welfare of common masses amidst any pandemic or epidemic. The strong use of these sections was seen during the time of most dangerous epidemics like “Smallpox” and “Bubonic Plague”.

Recent use of these section include, In March 2018, it was stated by the health ministry that if clinical establishments fails to inform the public health officers and Nodal Ministry about a patient who is suffering from tuberculosis will be held liable under Section 269 and 270  because tuberculosis had been made a notifiable disease in India in 2012. The use of these sections is quite evident in the light of the status quo amidst this pandemic; we see these sections are being used repeatedly for restricting the escalation of Corona Virus.

In the similar way various section of Disaster Management Act, 2005[8] also plays a crucial role amidst this pandemic. Provisions like Section 6[9] and 10[10] of DMA helped in implementing a Nation-Wide uniform lockdown rules and regulations

Conclusion

Today, India is highly developed, in its pattern of living lives and, amidst this pandemic, an amendment of the 123-year-old Epidemic Act of 1897 was essential to deal with the situations in those past times but not now, as our country grows so, does its need for more lawful provisions. Though the current Ordinance has bought vital changes to the lives and properties of healthcare service personnel there were certainly more reforms required in the amendment, as it is a very short provision with only 4 Sections that do not even specify the definition of Epidemic itself. The Ordinance mentions all the details regarding how it empowers the State or the Central Government yet the rights of the common public during such critical times is nowhere to be seen, as the provision has been improved, according to the need of the hour but not all the necessary legal aspects of the citizens, in particular, were attained. 

Therefore, a proper legal architecture using all the bricks of existing legal system needed to be looked upon in order to build a strong legal framework to not only fight against COVID 19 but also prepare our legal system ready for any such future mishap.

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[1] http://legislative.gov.in/sites/default/files/A1897-03.pdf

[2] https://www.livemint.com/news/india/a-123-yr-old-act-to-combat-coronavirus-in-india-experts-say-nothing-wrong-11584182501707.html

[3] http://egazette.nic.in/WriteReadData/2020/219108.pdf

[4] http://exam.tnebnet.org/exambooks/AO2L.pdf

[5]The Epidemic Diseases (Amendment) Ordinance, 2020, PRS INDIA, (Apr. 22, 2020), https://www.prsindia.org/billtrack/epidemic-diseases-amendment-ordinance-2020

[6] https://indiankanoon.org/doc/734195/

[7]https://indiankanoon.org/doc/1164731/#:~:text=%E2%80%94Whoever%20malignantly%20does%20any%20act,with%20fine%2C%20or%20with%20both.

[8] https://www.ndmindia.nic.in/images/The%20Disaster%20Management%20Act,%202005.pdf

[9] https://www.ndmindia.nic.in/images/The%20Disaster%20Management%20Act,%202005.pdf

[10] https://www.ndmindia.nic.in/images/The%20Disaster%20Management%20Act,%202005.pdf