• Introduction:

The Epidemic Diseases Act, 1897 invoked by the Central and State governments to combat the impending threat of COVID-19 is a special law, empowering the government to adopt special measures and enforce stringent policies, so as to prevent the outbreak of any dangerous epidemic diseases.Many state in India have invoked the provisions of the Epidemic Diseases Act, 1897, as a major tool in the fight against the Covid-19 pandemic. The current review attempts to discuss the ethical challenges in implementation of the Epidemic Diseases Act, 1897, to combat Covid-19 in India. Implementation of the Act in India has exposed its major limitations. It remains merely as a "policing" Act with no emphasis on coordinated and scientific responses to outbreaks and without provisions for protecting the rights of citizens. The Epidemic Diseases Act in its current form has the potential to cause more harm than good. Furthermore, the Epidemic Disease (Amendment) Bill, 2020, has not addressed any of these concerns. There is need for a rights-based, people-focused and public health-oriented law in India to deal with epidemics.

The article gives a brief history and background of the act, It isalso discusses the ordinance that was passed on 22nd April to amend the Epidemic Diseases Act, 1897 to provide protection to the healthcare workers and their property. Furthermore the article aims to identify the limitations. The article also provides various judicial cases related to the act.

1. History and Background:

The Epidemic Diseases Act was enforced in 1897 to deal with the plague epidemic that broke out in the presidency town of Bombay. The act was enacted for better prevention of epidemic diseases such as Cholera, Plague, etc. The plague took millions of lives and the British government were tasked with the difficult job of containing the disease to spread further, so the local authorities were given special powers by the then governor general Victor Bruce to take actions in order to control the epidemic.

The result was that the chairman Bombay Plague committee Brigadier General W.F. Gatacre along with other members made a law against people who were fleeing from their municipal limits so as to prevent the disease from spreading in the entire British colony. The century old legislation has again come into use for preventing the spread of COVID 19.

Indian civil service officer Charles Walter Rand felt the need for strong measures to "stamp out plague from Poona" and deployed the militiary to search infected person. Soon, reports and rumours of harassment of locals - especially of Indian women - at the hands of British soldiers started emerging from the city.(1)

2.Amendmend in Epidemic Diseases Act,1897:

Recently, in many places in India the health care workers were attacked by many perpetrators. After such acts of attacks on corona warriors, the central government brought an ordinance on 22nd April to amend the Epidemic Diseases Act 1897 and to punish such perpetrators who attacked the warriors. This move of government is indeed welcomed and is praiseworthy. The government in order to protect corona warriors, health workers and their property approved promulgation of ordinance on 22nd April to amend the Epidemic Diseases Act 1897. The amendment makes acts of violence, against health workers and other medical staff) as a cognizable and non-bailable offence.

Now commission of offence against health workers shall be punished with imprisonment of term for 3 months to 5 years and with fine of Fifty thousand Rupees to Twenty thousand Rupees. In case, grievous hurt is caused then the imprisonment shall be for term of 6 months to 7 years and with fine of 1 lac to 5 lakhs. Furthermore the offender will also have to pay a amount as a compensation to the victim and double the market price shall be charged for recovery of damage done to the property of victim.

3.Scheme under the Act:

The act is one of the shortest legislations in the country, containing four sections only. Section 2 of the act empowers the state governments to take such measures and prescribe temporary regulations as may be required to control an epidemic disease. Section 2A empowers the central government to inspect any ship leaving or arriving in port and for the detention of any person sailing or arriving therein. Section 3 provides for punishment under Section 188 of the Indian Penal Code (IPC) for any person disobeying the act. If any disobedience by a person causes or tends to cause danger 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 provides legal protection to persons for anything done under the act (Ministry of Law and Justice 2020).(2)

4.The Act during Coronavirus Pandemic:

As the coronavirus pandemic engulfed the country, this 123-year-old act was invoked, along with provisions of the Disaster Management Act, to control the spread of the virus. Most Indian states, such as Delhi, Uttar Pradesh, Maharashtra and Bihar, notified regulations under the act authorising government officials to admit, isolate and quarantine people in certain situations. Drawing from the act, many states took measures, such as the closing of schools, malls, gyms, institutional and home quarantine, in order to mitigate the crisis.(3)

The act was amended by way of an ordinance in April 2020. The amendment aimed primarily at protecting healthcare personnel engaged in combating the coronavirus and expanded powers of the central government to prevent the spread of such diseases. It made 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 required to pay compensation to the victims (PRS India 2020).(4) The ordinance was introduced as a bill in the recently concluded session of Parliament. It was passed by both houses of Parliament and received the assent of the President on 28 September 2020, thereby bringing into effect the Epidemic Diseases (Amendment) Act, 2020, which incorporates the afore-discussed changes (PRS India 2020).

5. Limitation of Epidemic Diseases Act:

There are concerns about disease surveillance and risk of privacy breach under the current epidemic disease response regime. The act fails to define a Dangerous epidemic disease. There are no clarity on the criteria that need to be applied for declaring a disease as dangerous or epidemic. It is silent on variables such as the magnitude of the problem, the severity of the disease, distribution of affected population across age groups, possible international spread, or the absence of a known cure. Further, the act contains no provision on the dissemination of drugs/vaccines and quarantine measures to be taken. The act was formulated at a time when concepts like constitutional principles, fundamental rights and basic human rights did not exist. There is no underlying dissemination of fundamental human rights that need to be observed during the implementation of emergency measures during an epidemic (Tewari 2020). The act focuses on government powers during an epidemic, but does not specify its duties in controlling/preventing an epidemic, nor does it enunciate any rights available to the citizens in the event of an outbreak.

6. The Question of Judicial Scrutiny:

The act has, on multiple occasions, been examined through the lens of judicial scrutiny by various courts. The Calcutta High Court in Ram Lall Mistry v R T Greener (1904) evaluated the scope of Section 4 of the act. The issue before the court then was whether the chairman of the Calcutta Corporation was protected from liability arising out of a demolition of a building done under the plague regulation to curb the spread of the plague. The court clarified that Regulation 14 of the plague regulation imposed such liability and hence, the building owner must be compensated. However, such non-payment of compensation is not protected under Section 4 of the act (1904).

Disobedience of orders under the act attracts a penalty under Section 188 of the IPC. However, under this section, mens rea or an intention to harm is not important. It is sufficient that the person knows of the order which they disobey. The Orissa High Court in J Choudhury v The State (1963) held a medical practitioner liable for contravening regulations under the act, by refusing to undergo vaccination for cholera. The Court observed that the intention of the said doctor was irrelevant, his disobedience in itself was punishable under the act. 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 (Law Commission of India 2014).

7. Conclusion:

In the current context what we require the most is a strong legal framework that will not just provide the powers of government but shall also define the duties, obligations of government and government's role in combating and preventing diseases. It is clear that India has fallen short in ensuring a modern legal framework to tackle a pandemic. There is also a need of Public Private Partnership PPP Model of healthcare. Thus the act has become insufficient and outdated. There is no uniformity of law as different provisions are followed by different states and so the need of the hour is a comprehensive codified public oriented health code.

*FOOTNOTE:

• Cases cited:

1. Justice K S Puttaswamy (retd) and Anr v. Union of India and Ors (2017),SSC online, SC, 996.
2. Ram Lall Mistry v. R T Greener (1904): Indian Law Review 31, cal 829.
3. J Choudhury v. The State (1963): Criminal Law Journal, Orissa High Court, p 659.

• Reference:

1. Rashid, Atikh (2020): How Oppressive Containment Measures during Poona Plague Led To Assassination Of British Officer, Indian Express, 9 June.

2. Ministry of Law and Justice (2020): The Epidemic Diseases Act, 1897, Act No 3 of 1897.

3. https://science.thewire.in/health/epidemic-diseases-act-india-

4. PRS India (2009): The National Health Bill, 2009, Ministry of Health and Family Welfare, January,

   (2020): The Epidemic Diseases (Amendment) Ordinance, 2020,PRS Legislative Research, 22 April.