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The Epidemic Diseases Act, 1897 - Need for new pandemic laws

This law was enacted during the end of Nineteenth-Century when plague, which was brought from Hong Kong to British India, killed about 10 million people in India. In fact, this enactment which contains just four sections was made known only when the ongoing pandemic entered our country from across the borders during April 2020.  This Law gives power to the government (both state and Centre) that if at any time the central or state government is satisfied that India or the state, or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease, the central or state government, if it thinks that the ordinary provisions of the law for the time being in force are insufficient for the purpose, may take, or require or empower any person to take, such measures and, by public notice, prescribe such temporary regulations to be observed by the public or by any person or class of persons as it shall deem necessary to prevent the outbreak of such disease or the spread thereof, and may determine in what manner and by whom any expenses incurred (including compensation if any) shall be defrayed. (Sec 2). It imposes penalty to any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under section 188 of the Indian Penal Code. (Sec 3). The law gives protection to persons acting under this Act against any suit or other legal proceeding for anything done or in good faith intended to be done under this Act (Sec 4).

RELEVANCE OF THIS AGE-OLD ACT IN THE PRESENT PANDEMIC ERA

It is a still debatable as to whether this law is complete on all respects to combat this pandemic as the challenge to humanity is new to most of the present living generation. In other words, no one will be alive now to support its legal validity and sanctity of this Act enacted during the colonial era.   The anti-plague measures adopted by the colonial regime towards the end of the nineteenth century ‘was directed more against the natives than the plague bacillus.’ The law which was enacted in February 1897 in the wake of the outbreak of the bubonic plague in India (particularly in the Bombay presidency), was one of the excuse and opportunity to give draconian powers to the colonial government to exercise power on people as it empowered authorities to detain plague suspects, destroy or demolish infected property, prohibit fairs and pilgrimages and examine passengers at ruthless will.

"HOW THE EPIDEMIC DISEASES ACT OF 1897 CAME TO BE"

In his article published in The Wire on 02nd April 2020 by Mr. Saurav Kumar Rai a Senior Research Assistant at the Nehru Memorial Museum and Library, New Delhi it was argued “that this law had only empowered the colonial authorities to detain the plague suspects, destroy or demolish infected property and dwellings, prohibit fairs and pilgrimages and examine the passengers at will. The British even resorted to ‘check-up’ of Indian women at railway stations and public places. It was even deployed to dishonour Indian women. In fact, the Plague Riot of Kanpur in April 1900 was fuelled largely by the rhetoric brought together various sections of Hindu society together to ‘safeguard’ the ‘honour’ of Indian women. The aforesaid issue of the forceful ‘check-up’ of an Indian woman at public places, including hospitals, especially by a male attendant or surgeon continued to be a volatile issue.  In this regard, a report published in The British Medical Journal on November 28, 1896, while discussing the riots caused in Bombay because of government policies of quarantine noted that many people belonging to upper caste or class requested evasion from being quarantined with low caste or class people. In other words, upper caste or class people demanded special considerations under the Epidemic Diseases Act in accordance with their ‘caste’ prejudices. The report suggested that a sensible way out of this difficulty was to throw the responsibility on the particular caste or class demanding special consideration to carry out their own expense for such modifications (such as a separate isolation cell or quarantine at home) as they wish. Invoking the same Act, in the North Western Provinces and Oudh (erstwhile name of Uttar Pradesh until 1902) the authorities came up with a unique arrangement of punching a hole of 4/10ths of an inch in the long side of the tickets of plague suspects at railway stations in the Allahabad and Pratapgarh districts. It was like branding a plague victim and it raised so much furore that the secretary to the government of the North Western Provinces and Oudh had to ask permission for its discontinuation within a week of its introduction. Hence this law of 1897 came in a particular context and undoubtedly carries a colonial baggage and its associated struggle. In this regard, likewise many other colonial era legislations necessary amendments may make it more suitable, humane and fit for tackling epidemic like situations in contemporary India.”

LIMITATIONS OF THE PRESENT EPIDEMIC DISEASES ACT, 1897

This age-old law contained several deficiencies and limitations which are briefed as under:

  1. This law was enacted only for a specific epidemic related to transmissions between two countries unlike the present pandemic which has affected the entire sphere of the planet.
  2. History suggests that this law as only misused to exercise unquestionable supremacy of power during the colonial era of the British.
  3. It is silent about the imposition and implementation of Lockdown and relaxtion norms.
  4. During the nineteenth century India was divided in Provinces and colonies of many other countries like France, Portugal, etc unlike the present federal set up of States. Amendments thereof during subsequent years after independence have never contained any value additions or provisos for enlargement.
  5. The law is so crude and stale that there is no specific legal definitions described about the concept of Epidemic and the diseases related to it.

NEED FOR NEW PANDEMIC SPECIFIC LAWS FOR OUR COUNTRY

It is still inexplicable to understand the fact that as on date World Health Organisation (WHO) reports that there are 89,93,659 confirmed cases of COVID19 infected, of which 4,69,587 people have lost their lives spread across to 216 countries. Situation Report No.155 suggests that India is affected with 4,40,215 cases of which 14,011 have lost their lives so far. Official data from Government of India has reported that there are still 1,83,022 active cases (with 14476 deaths). The encouraging aspect is the fact that 2,58,684 persons have already been cured and discharged.

The first COVID19 outbreak in the country was reported on 30th January 2020 in the State of Kerala when a Wuhan University student travelled back to his hometown, India announced its first Janata Curfew on 22nd March 2020 and only personnel from the NCC and NSS cadres were deployed to enforce the curfew. The first lockdown was announced for the period from 25th March 2020 to 14th April 2020, second lockdown continued upto 03rd May 2020, third lockdown upto 17th May 2020 with some relaxations. The country has been split into 3 zones: red zones (130 districts), orange zones (284 districts) and green zones (319 districts). Red zones are those with high coronavirus cases and a high doubling rate, orange zones are those with comparatively fewer cases and green zones are those without any cases in the past 21 days. Normal movement was permitted in green zones with buses limited to 50 percent capacity. Orange zones would allow only private and hired vehicles but no public transportation. The red zones would remain under lockdown. The fourth phase was extended upto 31st May 2020. The current phase of lockdown will continue upto 30th June 2020.

Guidelines for unlock was first notified on 30th May 2020 wherein Government of India has issued guidelines for reopening of lockdown for areas outside the containment zones in three phases, adherence of National Directives for COVID19 management like Face coverage, Social Distancing, restrictions in public gathering, spitting in public places, consumption of liquor, paan, gutka, work from home, staggering of work/business hours, screening and hygiene, frequent sanitizing, Night curfew, lockdown limited to containment zones, unrestricted movement of persons and goods, protection of vulnerable persons, use of Arogya Setu APP, etc. But these guidelines were never subject to strict compliance by various States despite the fact that all of them are very much there in pubic domain. Offences and penalties for violation of lockdown measures were prescribed under invocation of Sections 51 to 60 of Disaster Management Act, 2005 in terms of punishment for obstruction, false claim, misappropriation of money or material, false warning, offences by the Departments of the Government, Failure of officer in duty or his connivance at the contravention of the Act, penalty for contravention of order for requisitioning, offences by Companies, etc. Section 188 of IPC for Disobedience to Order duly promulgated by Public Servant was also notified in the said guidelines for violation of Lockdown measures. Though the States and the Centre have gone all out to combat this pandemic on warfooting, the results are very discouraging due to the fact that the challenge is not only new for every single person globally but also the pace of spread of the virus was so fast that in a matter of fortnight it could infect people across more than 100 countries and engulfed the entire humanity spread across to 216 countries so far. The pace of increase and spread in our country is still scary and alarming as on date though the position is very threatening in few states like Maharastra, Tamil Nadu, Gujarat and Delhi.

Hence there is a desperate need to frame a new pandemic specific law incorporating the  following aspects through an enactment taking into account of all the challenges surmounted in the management of COVID19 so far:

  1. Guidelines related to circumstances under which Lockdown or Curfew should be announced depending upon the categories of Zones prescribed under this law.
  2. Categories of Prohibitions should be specified like Transport services through Air, Road, Rail, Sea, etc. and usage of private aircraft carriers engaged unlawfully to move from one state to another has to be mentioned.
  3. Rules for imposition and relaxations of lockdown or curfew depending upon specific official data about cases infected, population per sq.km,, hospital infrastructure, inter-state movements, inter-district movements, courier services, etc.
  4. Supply of essential commodities through PDS at doorsteps of citizens, etc without any promotion of politician or individuals engaged for taking political mileage. Case relief and welfare benefits should be specifically credited through the bank accounts using Direct Benefit Transfer Scheme (DBTS) only.
  5. Categorisation of commodities into Essential and Non-essential for specific understanding of any law abiding citizen.
  6. Education, Entertainment, Spiritual related activities should be specifically explained in the law for implementation of closure or shut down during the pandemic..
  7. Specific timelines or period of any lockdown should be mentioned along with the minimum period of notice to public by the authorities of State or Centre.
  8. All Categories of services engaged in the frontline by personnel like Doctors, Nurses, Paramedical Staff, Allied Staff like Lab. Technicians, Drivers, scavengers, etc, police, registered volunteers sponsored by NGOs, political parties, etc, civic staff, health workers, bankers, etc should be listed in a schedule to the law so that the respective employers both from Government and Private sources can be instructed under law about their specific duties, responsibilities, special pay, personal protection equipment’s, working hours, leave facilities, etc should be properly codified with specific reference to laws therein including Indian Penal Code, Directive Principles of State Policies under Constitution, etc.
  9. Law should specify or bar any person engaged in marketing and selling of unapproved medicines to cure for any specific diseases or viruses responsible for pandemic.
  10. Law should specifically mention the Rights and Duties of all citizens while undergoing treatments or compliance to laws related to pandemic.
  11. Right to Life and Right to Livelihood should be guaranteed under the law after making specific pandemic related amendments to constitution so that it becomes the duty and responsibility of the State to take care of these two Rights for every citizen.
  12. Laws to devise specifications for Food Supply chain to facilitate the functioning of specific business establishments dealing with food items as well as the manufacturing units and transportation of "essential goods" so that no shortages or rise  in the prices of food items and essential sectors such as growing, harvesting and food deliveries  is experienced by the citizens during any pandemic.
  13. Law should specify guidelines of Medical Waste Management or mishandled due to excessive consumption and disposal of all end use medical garbage accumulated that has a direct impact on environment and civic hygiene due to lack of specific awareness and knowledge both by the citizens and the administrators under the State.
  14. Publication of statistics and related information should be entrusted to a single source government approved organization and media should publish or share only those details instead of floating unverified data in the public domain creating panic. Law should address this issue and the disputes or the discrepancies related mechanism or the bonafide procedures should be specifically laid down.
  15. Law should specifically impose restrictions and guidelines for all types of Social Media including Television channels engaged in pandemic related debates and spreading false information about the pandemic without any basis or research work.
  16. Law must specify guidelines related to Medical Research and specific timelines including allocation of Budget for pandemics.
  17. Cash Compensation should be specified from both State and Central Relief Funds to all who lost their lives on account of pandemic.
  18. Law should categorically state a criteria for distribution of relief packages to States in terms of number of cases, population-area ratio, loan moratorium, interest waivers.
  19. Law must specify procedures for Collection of donations for National Disaster Relief Fund and its financial management should be entrusted to a Committee headed by the Prime Minister and all details of inflows and outflows should published in the official website for information to all in the public domain.
  20. All types of litigations related to pandemic filed in various courts should be evaluated and specific laws should ensure redressal of grievances through a single online mechanism through virtual courts headed by Senior High Court Judges.

Lessons learnt and experience gained in the management of this pandemic should give us a golden opportunity to explore an unique Pandemic Law for the country that would help to face and address all issues related to any future viruses that would help to encounter many such challenges threatening the survival of citizens in the country. The newly constituted 22nd Law Commission approved by the Union cabinet on 19th February 2020 should contain the modalities of framing a new Pandemic Law with the recommendations of members from Medical Research, Legal and Constitution experts, Police Head of IPS cadre, administrators of IAS cadre both maximum affected States and excellently managed States having experience in handling COVID management and submit a report or a draft law with all these above 20 chapters so that a composite pandemic law is enacted at least before the next pandemic hits the humanity.

 

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