Written by: Khushi Malhotra, Faculty of Law, Maharaja Sayajirao University of Baroda
Introduction
The World Health Organization defines Epidemic to be “The occurrence in a community or region of cases of an illness, specific health-related behaviour, or other health-related events clearly in excess of normal expectancy.”[1] The 21st century has witnessed the deadliest epidemic’s than the pandemics that have occurred in the past. India has suffered due to large outbreaks in the recent past. According to the Integrated Disease Surveillance a total of 553 outbreaks were reported in 2008, 799 outbreaks in 2009, 990 outbreaks in 2010, 1675 outbreaks in 2011, 1584 outbreaks in 2012, 1964 outbreaks in 2013, 1562 in 2014 and 1935 in 2015, 2679 in 2016 and 1714 have been reported in 2017.[2] In the month of December an outbreak of an unknown cause was detected which on 11th March came to be known as COVID-19 and was characterized as a pandemic by WHO Director General.[3] According, to the data shared by the Union Ministry of Health and Family Welfare, the total number of positive cases reported in India are 1,10,960 with 6348 deaths and counting.[4] To contain the increasing number of cases of Covid-19, a communicable disease, India invoked The Epidemic Diseases Act, 1897 in mid-march.
Battling Contemporary Health Emergencies with a Colonial-Era Law
The Epidemic Diseases Act, 1897 which was invoked to contain the Covid-19 epidemic is known to be 123 years old law. This law was enacted in response to the outbreak of bubonic plague in India with the objective of better prevention of the spread of dangerous Epidemic Diseases.[5] The Act is presumed to be one of the smallest legislations in India and possesses potential for misuse as the provisions in the act are ambiguous and unable to sufficiently fulfil the needs of a pandemic situation. From the study conducted by ISDP over years it is evident that there have been many outbreaks in the country that were either infectious or non-infectious, however the said archaic legislation has repeatedly been used by the states to address the multi-faceted public health issues of India. The said EDA,1897 confers on state government, discretionary power to prescribe any such temporary regulations that are to be observed by the people or class of persons to prevent the outbreak of the dangerous epidemic disease.[6] It further confers power on the Central Government to take measures and prescribe guidelines if it appears to the Central Government that India or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease and that the ordinary provisions of the law for the time being in force are insufficient to prevent the outbreak of such disease or the spread.[7] The Act penalises anyone who violates its provision and that such offence is punishable under S.188 of IPC.[8] The EDA,1897 was amended by a recent ordinance akin to the current pandemic, stating that there is zero tolerance to any form of violence against healthcare service personnel and damage to property. Further, the Central Government has been given a concurrent role with the State Governments to take any measures that may be needed to prevent the outbreak of an epidemic. In addition, the scope of inspection of vessels arriving or leaving the country has been enlarged to include road, rail, sea and air vessels.[9]
The ongoing situation of Covid-19 has brought into light that India does not have a comprehensive and updated legislation to deal with public health emergencies like the ongoing corona virus pandemic and hence has warranted the need of a robust and overarching public health law that will replace this colonial era law. Even though the Ordinance is passed by the government to cope up with the ongoing situation of harassment towards the health workers in the country, however such ordinance is just a temporary amendment to the act that would be valid only for period of 6 months and hence it won’t suffice the lacunae that only an updated and a full-fledged Epidemic act will fulfill.
The century old Act over the years has not gone under any amendment and has accumulated quite a number of flaws which can be attributed to the changing priorities in public health emergency management. The EDA law was formulated when the concept of disease was ill understood and therefore the law fails to define “dangerous”, “infectious”, or “contagious diseases”, let alone an “epidemic.”[10] The absence of Interpretation clause opens the scope of misuse of the act as there is no definite criteria to decide as to what can be called as an dangerous epidemic disease. The EDA,1897 is purely regulatory in nature and lacks a specific public health focus. It does not describe the duties of the government in preventing and controlling epidemics. The Act emphasises the power of the government, but is silent on the rights of citizens. It has no provisions that take the people’s interest into consideration. A People centred law is about considering people’s needs, desires, values, social circumstances and lifestyles, and working together to develop appropriate solutions. The Act is also silent on the ethical aspects or human rights principles that come into play during the response to an epidemic.[11] For instance, there are no provisions as to income for the daily wage workers in situations of quarantine or isolation. Further, it does not clearly define the powers of government in curtailing the autonomy, privacy and property rights of the people. The act would have been ideal if it stated the process of curtailing Individual autonomy, liberty and privacy, like closing malls or restaurants, then this fair process would have ensured that the government has made decisions that are well within the parameters as defined under the law.[12]Apart from the isolation or quarantine measure the act is mum on the legal framework of availability and distribution of vaccine and drugs and implementation of response measures.[13]The current pandemic also displays a need of adding provisions that would solely deal with the education sector during public health emergencies, like the efficiency of online classes, reimbursement for internet packs for attending online classes, effective ways of conducting online exams. Lastly, the punishment that is prescribed in the act i.e. fine of Rs.200 and imprisonment of one month also needs revisiting as the punishment is not adequate to guarantee justice to all those who have suffered during the epidemic because of the violators of the act.
The creation of a new comprehensive legislation by taking a more systematic approach, keeping in mind all the above-mentioned drawbacks, is required to tackle such outbreaks in future. Though attempts have been made in the past to amend the law. The proposed 2017 Public Health Bill, which looked at monitoring epidemics, disasters and activities related to bio-terrorism, also intended to overhaul the existing system. The bill would have repealed the EDA,1897, but it has not yet been presented in the Parliament, and it is under the consideration of the law ministry. However, replacing one law with another clearly doesn’t solve the problem. The efforts to curb infectious outbreaks cannot succeed without an appropriate surveillance network, strong public health systems and epidemiologists providing organizational information and policy support.[14]
Conclusion
The COVID-19 public health emergency provides the Union government a rare opportunity to update the country’s laws; otherwise, this legislative and policy gap could soon prove to be India’s Achilles' heel.[15] COVID- 19 is an eye opener for Indian legislature, which can be used as an opportunity for repealing the current EDA and structure a law that is comprehensive and strong to address the changing public health priorities. All the different laws that have been implemented during this pandemic can be clubbed under an overarching law that would help in battling the events of any public health emergencies like this one in the future.
References
[1] World Health Organisation, Glossary of Humanitarian Terms, Humanitarian Health Action, (May 27,2020,7:00PM), https://www.who.int. [2] Ministry of Health and Family Welfare, Weekly Outbreak Surveillance, Integrated Disease Surveillance Programme, (May 27, 2020,7:00 PM), https://idsp.nic.in. [3]World Health Organisation, WHO Director- General’s opening remarks at the media briefing on Covid- 19, (May 27,2020,7:00PM), https://www.who.ints. [4]Ministry of Health and Family Welfare, Active Covid- 19 (India) cases, (May 27,2020,7:05 PM) https://www.mohfw.gov.in. [5] The Epidemic Diseases Act, 1897, No.3, Acts of Parliament,1897(India). [6] The Epidemic Diseases Act, 1897, No.3, Acts of Parliament,1897(India),S.2. [7] The Epidemic Diseases Act, 1897, No.3, Acts of Parliament,1897(India),S.2A. [8] The Epidemic Diseases Act, 1897, No.3, Acts of Parliament,1897(India,S.3. [9] Ministry of Health and Family Welfare, Promulgation of an Ordinance to amend the EDA, 1897 in the light of the pandemic situation of Covid-19, Press Information Bureau, May 28, 2020,10:00 AM), https://pib.gov.in. [10]Manish Tewari, India’s fight against health emergencies: In search of a legal architecture, Observer Research Foundation,(May 28, 2020,10:30AM), https://www.orfonline.org. [11] Manish Tewari, India’s fight against health emergencies: In search of a legal architecture, Observer Research Foundation,(May 28, 2020,10:30AM), https://www.orfonline.org. [12] Manish Tewari, India’s fight against health emergencies: In search of a legal architecture, Observer Research Foundation,(May 28, 2020,10:30AM), https://www.orfonline.org. [13] Binod K. Patro, Jaya Prasad Tripathy,et.al.(eds)., Epidemic diseases act,1897,India:Whether sufficient to address current challenges? J Mahatma Gandhi Inst Med Sci 2013; at 109, 110. [14] Tushar Agarwal, Epidemic Disease Act,1897: Whether sufficient to combat deadly coronavirus in India?, ModernDiplomacy, (May 28, 2020,10:20 AM) https://moderndiplomacy.eu. [15] Manish Tewari, India’s fight against health emergencies: In search of a legal architecture, Observer Research Foundation,(May 28, 2020,10:30AM), https://www.orfonline.org.
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