THE EPIDEMIC DISEASES ACT, 1897
Introduction and Background
The Epidemic Disease Act was introduced during the colonial British regime in 1897, it was meant to fight the bubonic plague epidemic that spread in the Bombay Presidency in the 1890s. Now while the objective of the act was to prevent the spread of dangerous epidemic diseases, it has to be kept in mind that between when the act was introduced and today (a span of more than 100 years), there has been massive development and progress in the field of medicine and technology. The law should keep pace with the changes and developments in society in order to ensure its relevance and effectiveness.
The Act in question is particularly interesting because it provides the government with almost unlimited powers to issue any and all regulations/ take such measures that it feels are necessary. There are only 2 preconditions to the use of this power -
(1) the government (state/central) should be satisfied that it is threatened by a dangerous epidemic disease AND
(2) the government (state/central) should be convinced that the present laws are insufficient.
This is problematic for primarily 2 reasons -
Understanding and interpreting the term “threatened by a dangerous epidemic disease.”
There is clearly a lot of subjectivity with respect to how the government will interpret ‘dangerous epidemic disease.’ It is not clear what kinds of diseases should fall under this category. To make matters worse the courts have allowed for a very flexible interpretation of the phrase. For instance the HC of Andhra Pradesh, allowed the act to be invoked to prevent the spread of dangerous diseases while in actuality it was only meant for dangerous epidemic diseases. Further when will this ‘dangerous epidemic disease’ be considered a ‘threat’ is again something that is not clear and is left completely to the interpretation of the relevant government.
Discretionary power to create regulations
If the relevant government feels that the ordinary provisions of the law are insufficient it may issue temporary regulations. The idea is to empower the government to be able to take proactive steps in a timely manner. However, we cannot overlook the fact that such law making is not truly democratic and is essentially an exercise of the discretionary power of the ruling party. Also, there are no objective criteria for how this discretionary power is to be exercised.
Is the Act focussing on the right things?
The act is purely regulatory in nature. It discusses what the government can do when it feels that there is a possibility of a dangerous epidemic disease spreading, however it does not put any onus on the government with respect to preventing such epidemic diseases in the first place. The act does not work towards finding solutions as to how spreading of dangerous epidemic diseases can be minimised if not prevented, by involving different stakeholders.
Ambiguities in the Act
Section 4 of the Act, provides immunity from prosecution to “any” individual for anything done or intended to be done in good faith under this act. Here ‘any’ has not been defined and it is not clear as to ‘who?’ will get immunity for ‘what?’ considering that the provision is very broadly worded and can be interpreted very widely.
How does the Act (and COVID) affect an individual's rights?
Right to Privacy u/Art 21
The Epidemic Diseases Act, 1897 in India requires medical practitioners to notify the Health Officers of any person with infectious disease. Now while this may seem like a prima facie violation of an individual's fundamental right to privacy, it is not. However when we consider this in the light of the publication of quarantine lists we realise that there is a problem. This is because publication of quarantine lists makes public a lot of personal information. This is clearly in breach of a reasonable expectation of privacy. Now for this interference with an individual's right to privacy to be legitimate. In the case of Justice K. S. Puttaswamy v UOI it was held that a 3 part test would be used to examine if the interference is justified: first, whether the action is sanctioned by law; second, whether the action is aimed at achieving a legitimate aim; and third, whether the action is necessary and proportionate for the achievement of that aim.
The publication of the lists is clearly in breach of the first condition because there is no express provision of law that allows for this. Even if we argue that the respective state governments used their powers u/s 2(1), they would still need to establish this was necessary.
The second test would also not fail since preservation of public health is a legitimate state interest.
The publication cannot be considered as necessary and proportionate. This would be because this step could have been taken by keeping the data anonymised and simply creating quarantine zones without making all the information about these individuals public.
Finally the interference is not justified since the test has not been satisfied in its entirety.
Contracts and agreements entered into prior to the pandemic
The courts have recognized that a dangerous epidemic has the potential of affecting businesses and the normal state of things. It is for this reason that recognising an epidemic as something which is completely out of the control of any individual as such, the principle of vis major can be invoked. The Bombay HC recently invoked this principle in case of the COVID19 epidemic. Hence it is reasonable to expect that affected parties would be able to claim relief by invoking the vis major clause.
Punishment for contravention
Any person disobeying any regulation/ order issued under this act can be punished u/s 188 IPC. However considering that Section 269, 270 of the IPC particularly deals with offences pertaining to the spread of a dangerous disease, it is worth questioning if the punishment should have been more stringent. Considering that Sections 269, 270 deal with a dangerous disease it would only make logical sense if the epidemic act (dealing with dangerous epidemic diseases) imposed a more severe punishment, considering that the possible threat and danger to society is only more.
Rights guaranteed to an individual under/ Article 19
The government is allowed to put reasonable restrictions on our rights guaranteed under Article 19(1)(a), 19(1)(b) and 19(1)(c) provided that these restrictions are for any of the reasons mentioned in 19(2), 19(3) and 19(4) respectively. All 3 of these provisions make a mention of
‘public order’ as one of the exceptions for which the government is allowed to pose reasonable restrictions. Now public order includes public safety and public safety when interpreted widely would include securing the public health from epidemics among other things.
Further the act would also not infringe an individual's rights under Article 19(1)(d), Article 19(1)(e) and Article 19(1)(g). This is because Article 19(5) and Article 19(6) provide for reasonable restrictions to be put on these rights provided that they are in the interests of the general public. Maintaining public health by taking measures to prevent the spread of dangerous epidemic diseases is clearly in the interests of the general public
The Epidemic Act is a very old act and to be made useful and relevant in the modern context, it is essential that we get a more comprehensive legislation that deals with the spread of dangerous diseases in general. Also in light of COVID19 it becomes more evident that the Epidemic Act is grossly insufficient to tackle such situations. The government is dancing between the National Disaster Management Act, 2005 and the Epidemic Act to be able to tackle the situation. This only emphasises the need for a new legislation that could adequately be able to deal with such a situation.
How can we Participate?
Civis, a web platform that enables citizens to understand draft policies in simple language by providing summaries for each Bill is gathering feedback on the Epidemic Diseases Act.
All that one must do is read the summary of the Act and share their feedback on the Act with the Government on Civis’ website itself, all feedback will be gathered analysed and shared with the Government, after this Epidemic subsides.
Visit Civis’ website to share your inputs/suggestions/recommendations on The Epidemic Act - https://www.civis.vote/consultations/105/read
Points For Discussion-
- Is the subjective satisfaction of the government a good metric to decide the danger posed by an epidemic
- Is it fair to give the government absolute discretionary power with respect to making temporary regulations
- Should regulations issued under the Epidemic Act, be treated as a reasonable restriction of our FR’s
- Whether the broad wording of the Act leaves it open to misuse?
- Whether the Epidemic Act has succeeded in deterring individuals from engaging in activities that may spread the disease?
- Whether air travel legitimately comes under the ambit of Section 2A of the Epidemic Act?
- Should the police be given so much power to enforce regulations issued under this Act?
By: Abhishek Jain, Shefali Agarwal & Saikat Panda
Tags :constitutional law