INDIAN LAWS AND COVID-19
India has invoked certain laws to combat the ongoing pandemic the Disaster Management Act, 2005 and the archaic Epidemic Diseases Act, 1897 along with Indian Penal Laws.
Epidemic Disease Act, 1897
The main legal weapon the government possesses today is only the Epidemic Disease Act of 1897, a hurriedly drafted short legislation to stonewall the plague that devastated life in Bombay in 1896, forcing people to migrate out of the city. The legislation is a four-section document, which doesn’t take into account important terms like ‘dangerous epidemic disease’ or an epidemic.
Section 2 of the law authorizes state governments to take exceptional measures and prescribe regulations that are to be observed to limit the spread of the disease.
As a result, various state governments have devised their own regulations as the current law in hand gives them exclusive rights to do the same. To name a few, the Himachal Pradesh government has announced The Himachal Pradesh Epidemic Disease (COVID–19) Regulations, 2020, the Delhi government has announced The Delhi Epidemic Diseases (COVID–19) Regulations, 2020, and the Government of Maharashtra has announced The Maharashtra (COVID–19) Regulations, 2020.
Section 3 makes it a criminal offence to disobey any regulation or order under the Act. This punishment is according to Section 188 of the Indian Penal Code, which provides for a fine of Rs 200 and simple imprisonment of one month for violating an order of a public servant. The penalty of Rs 1,000 and imprisonment of six months can also be imposed, depending on the impact of the disobedience. Section 4 gives protection under the law to officials and/or persons acting under the law. Section 2A empowers the central government to inspect ships or vessels leaving or arriving at any port in India and detain people if necessary.
Criticisms of the Act
The Epidemic Disease Act needs to be repealed as it is archaic. The Act renders centre powerless in case of any biological emergencies. It has to be substituted by an Act which takes care of the prevailing and foreseeable public health needs, including emergencies such as BT (bioterrorism) attack and use of biological weapons by an adversary, cross border issues and international spread of diseases. The legal inadequacy to tackle disease outbreaks was known for long. However, small steps were taken, but at the end of the day, the country was not ready when it encountered another pandemic the severest since the 1918 influenza pandemic that killed approximately seven million people in the country.
Union government’s role could, at best, be advisory and coordinating in nature, since Section 2 of the Act only empowers a state to inspect people and segregate suspected patients. The only power the Centre derives from the British Raj-era law is on “inspection of any ship or vessel leaving or arriving at any port” that comes under its jurisdiction. The Act does not even mention the airports and the humungous amount of tourists coming in the country. After all, the law does not bestow the Centre any power beyond issuing advisories and coordinating. It cannot even regulate the transfer of biological samples. Many health and legal experts have described the legislation as draconian and outdated. For instance, the law talks about inspecting ships or vessels but fails to address the increasing international travel, especially by air, greater migration, increased urbanization, high density of people in the cities, and change in the technologies of mass food production.
The legislation puts too much focus on the duties of the government in preventing and controlling epidemics, but not on the rights of the citizens. It does not mention any scientific steps that the government needs to take to contain or prevent the spread of disease.
Disaster Management Act and other laws
Under the Disaster Management Act the Central Government, irrespective of any law in force can issue any directions to any authority anywhere in India to facilitate or assist in the disaster management. Importantly, any such directions issued by Central Government and NDMA must necessarily be followed the Union Ministries, State Governments and State Disaster Management Authorities.
In order to achieve all these, the prime minister can exercise all powers of NDMA (S 6(3)). This ensures that there is adequate political and constitutional heft behind the decisions made. The present national lockdown was imposed under DM Act ‘to take measures for ensuring social distancing so as to prevent the spread of COVID 19’ (S 6(2)(i)). Additional guidelines were issued on the same day by the Ministry of Home Affairs, having administrative control of disaster management (S. 10(2)(l)).
To alleviate social sufferings, NDMA/SDMA are mandated to provide ‘minimum standard of relief’ to disaster-affected persons (Ss 12 and 19), including relief in repayment of loans or grant of fresh loans on concessional terms (S. 13).
The Centre drafted the 156-page Management of Biological Disaster Guideline in 2008 followed in letter and spirit even today the realization came that the Epidemic Disease Act was inadequate to deal with bioterrorism and international spread of diseases.
A draft was more sincerely followed up, with the health & family welfare ministry naming it Public Health (Prevention, Control and Management of Epidemics, Bio-terrorism and Disasters) Bill 2017, proposing to repeal the epidemic law of 1897. The draft bill explains in clearer terms the quarantining of suspects and isolation of the infected, in addition to empowering the Centre to direct states and district or local bodies as well as usurping powers bestowed to states under Section 3 if it is found to be “expedient and in public interests” to do so.
In addition, the proposed law also embedded a provision marking that anyone intentionally violating the law could end up paying a fine of up to `1 lakh and face imprisonment up to 2 years. This provision could have been useful now given the rising instances of Covid-19 suspects skipping quarantine. Under current laws, police can charge someone under IPC’s Section 269 for negligent act and Section 270 for the malignant act for spreading an infectious disease which is dangerous to life.
There needs to be a standard framework that will tell under what circumstances states can do take away rights and for how long and who needs to take the decision and ensure that people have access to basic services food, water, sanitation and personal entertainment while their personal freedom is taken away. There is a need for an integrated, comprehensive, holistic provision for the control of disease outbreaks in India that also takes the rights of the people into account.
Former Union health secretary Lov Verma concedes that there is a need to strengthen India’s legal framework but laws alone are insufficient. “India still has a plethora of laws to take on such an emergency. There are enough guidelines too. The problem arises mainly because of coordination and implementation issues” he says, adding that tunnel vision in the government often poses a challenge.
Author: Akanksha Anand,
Vivekananda Institute of Professional Studies,GGSIPU, 4th year/ Student