THEME: LEGAL ASPECTS OF CORONAVIRUS PANDEMIC

SUB THEME: EVALUATION OF EPIDEMIC DISEASES ACT, 1897

TITLE: ‘COVID-19: A CALL TO AMEND A 123

YEARS OLD LAW’
Abhishek Singh1 , Bhashvi Saxena2
1
Faculty of Law, Jamia Millia Islamia, New Delhi, India
2
Faculty of Law, Jamia Millia Islamia, New Delhi, India

INTRODUCTION

The Current breakdown of epidemic disease of COVID-19 has led world under a
horrific condition where all the nations including the most powerful ones have
succumbed, but in India it has also unveiled an archaic gap between the outbreak
of Epidemic Diseases and laws in its regard. The Epidemic Diseases Act is a 123
years old legislation brought by the Britishers in former British India to tackle the
then situation of the spread of ‘bubonic plague’ in Mumbai in the year 1897,
which we are still following even with the undefined definition of what the
epidemic diseases means. But it does not reflect that India has never suffered from
any pandemic after that plague, rather the Cholera epidemic in 1992 due to the
O139 strain, Plague in Surat in 1994, Chikungunya and dengue fever, avian
influenza (H5N1) and pandemic H1N1 influenza,1 are few example of it which
has caused threats to the health security in Indian societies. So, to provide the
delineation to the scope of government in response to disembarrass the emerged
public emergency in the country, various legal frameworks were evolved and this
Act is one of them. It has now became the need of an hour to critically evaluate

1
Rakesh P.S., ‘The Epidemic Diseases Act of 1897: public health relevance in the current
scenario’ (2016) 1(3) (NS), IJME < https://doi.org/10.20529/IJME.2016.043 > accessed on 9th
May, 2020.
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the Epidemic Diseases Act, 1897, as it is vague and ambiguous in itself and lacks
legal backing in keeping the surveillance on the recent global developments in
disease and their broaden perspectives.

OVERVIEW OF THE EPIDEMIC DISEASES ACT, 1897

The Epidemic Diseases Act2 is one of the shortest Act in India consisting of only
4 Sections and can be invoked by the government when they think that ordinary
provisions of the law, which are in force, are insufficient to contain the epidemic
disease outbreak. First Section deals with extent & application of the Act. Section
2 provides power to States to enact special law in case of failure of ordinary law
in controlling the epidemic, by exercising the power conferred by this section
various states like Kerala3, Telangana4, Maharashtra5, etc. have framed special law
for COVID-19. Section 2A of the Act empower Central Government to enact any
special law to control the spread of disease and inspect ship arriving or leaving to
any country and detention of suspected people in case of fear of spread of
epidemic disease. Section 3 contains the provision related to punishment in case
of violation of the law and if any person does not comply with the law will be
punished according to Section 188 of the IPC6, this section additionally provide
that the intention here is not relevant which means that court will not check that
whether the person has wrong intention to cause harm or not but the court simply
rely on the fact that the person is aware of order and in his knowledge he disobeys

2
The Epidemic Diseases Act, 1897,
< https://indiacode.nic.in/bitstream/123456789/10469/1/the_epidemic_diseases_act%2C_1897.pdf
> accessed on 10th May, 2020.
3
https://kerala.gov.in/documents/10180/172d9bbc-b89d-4a56-b1bf-6f3a61221d75, accessed on
10th May, 2020.
4
https://arogya.maharashtra.gov.in/pdf/30.pdf, accessed on 10th May, 2020.
5
The Maharashtra COVID- 19 Regulations, 2020,
< https://static.mygov.in/rest/s3fs-public/mygov_158511515251307401.pdf > accessed on 10th
May, 2020.
6
Indian Penal Code, 1860 (45 of 1860), Sec. 188, <
https://indiacode.nic.in/handle/123456789/2263?locale=en > accessed on 10th May, 2020.

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it to attract punishment under this section. Section 4 of epidemic disease Act

provide immunity to the person who does any act in good faith as according to
this provision of the act, no legal proceeding shall be lied against them.

GOVERNMENT MEASURES IN LIEU OF THIS ACT TO COMBAT

COVID-19

With the constant increase in the spread of COVID-19 cases in India, the
Government has decided to exercise its powers under available laws to strive
against this pandemic. The country wide lockdown, the suspension of the visas,
prohibition of large gatherings at public places, barred the opening of Malls,
hotels, Cinema Halls, Restaurants, University, Schools, Gyms, etc. are the
directives and the guidelines issued by the State and the Central Government
under the two primary laws i.e. the Epidemic Diseases Act, 1897, and the Disaster
Management Act, 20057.

Despite having such extensive powers with the State and the Central Government
under the Epidemic Act, the phrase “dangerous epidemic disease”8 has not been
defined in the law and the lack of such a definition makes it ambiguous and vague
in rendering the purpose for its creation which demands for a serious review of
this law by Parliament. The implementation of the home quarantine measures, the
imposition of pre-censorship on the news regarding the COVID-19 so as to
prevent the circulation of fake news, the imposition of Section 144 9 and Curfew
and many more such measures are doubtable in their constitutionality as the
7
The Drugs and Cosmetics Act, 1940 (23 OF 1940)
<https://upload.indiacode.nic.in/showfile?
actid=AC_CEN_12_13_00023_194023_1523353460112&type=rule&filename=Drugs%20and
%20Cosmetics%20Act,%201940%20and%20Rules,%201945.pdf >, accessed on 10th May, 2020.
8
Malavika Rajkumar, ‘Coronavirus: A quick guide to the laws the Indian government can invoke
to fight epidemics’ (2020) Scroll.in < https://scroll.in/article/957029/coronavirus-a-quick-guide-
to-the-laws-the-indian-government-can-invoke-to-fight-the-pandemic > accessed 9th May, 2020.
9
Code of Criminal Procedure, 1973, Sec. 144, <https://indiacode.nic.in/handle/123456789/1611?
sam_handle=123456789/1362> accessed on 10th May, 2020.

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Epidemic Diseases Act, 1897 is silent on all these. The vagueness and ambiguity
in the legal framework for the management of epidemic diseases and health
emergencies has always created a question on the actions of the government and
to clear these ambiguities, the taken measures has to go through a long process of
legal machinery to support it by legal backing which can be improved by
legislative measures.

CRITICAL APPRAISAL OF THE EPIDEMIC DISEASES ACT, 1897

The recent outbreak of the COVID-19 has raised the legal discrepancy with
regard to the pandemic and urging the Central and State Government to modulate
the existing laws concerning to the spread of epidemic diseases. The legislation is
ambiguous on various grounds and following are the few shortcomings of the
Epidemic Diseases Act:

The first and major defect of the Epidemic Disease Act, 1897 is it does not define
what the infectious, contagious, dangerous or epidemic means. 10 This act does not
fix any standard rule or regulation to declare the particular disease as epidemic.
The Act is majorly oriented towards the old concept of spreading the disease by
the way of ships and ignore the other mediums of its spread like air travel. Also
earlier the spread of such diseases took place as a pandemic which cannot be
controlled by the normal course of any human’s efforts but with the innovations
of technology the new concept of bio-weapons has evolved which is not covered
under the existing act to prevent the spread of dangerous epidemic diseases. It
lacks to understand the current scientific evolvement and only soothe to the then
needs from the prevention of epidemic diseases. The Act only gives isolation and
quarantine measures to control the disease and is silent about provisions regarding
10
Manish Tewari, ‘India’s fight against health emergencies: In search of a legal architecture’ (Mar
31st, 2020) ORF <https://www.orfonline.org/research/indias-fight-against-health-emergencies-in-
search-of-a-legal-architecture-63884/> accessed on 10th May, 2020.

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the process of creating vaccinations, surveillance and any other measure to make
an organized public response to deal with it. Due to lack of proper surveillance it
is very difficult to get the idea about the encumbrance of the disease in the
society. The notifications regarding the public outcry of any epidemic can only be
certified by a medical practitioner but the act again is silent on this and provide no
rules for constituting any such scientific teams to look into it, due to which the
public health authorities suffers a lot of problems in the management of the
disease, as the medical team can only provide an authentic notification for the
outbreak of such pandemic disease and then only the authorities can have the
further surveillances on it, in regards to take any appropriate measures to prevent
its spread in the communities. The Act does not provide any provisions in regards
to the safety and security of the medical staff rendering services to get control
over such epidemics, rather we can see the recent mob attacks on the medical
team which goes in the areas for treating the people11. The punishment prescribed
under the Act is too indulgent to deter the people committing the crime in current
scenario as it only imposes a fine of INR 200 and imprisonment of one month for
violating an order of a public servant. In short the Act is inefficient to take all the
measures on its own and is supported by various other acts like, Section 4 of the
Live-Stock Importation Act12 which empowers the state government to make rules
for the detention, inspection, disinfection, or destruction of imported livestock;
Section 6 of the Indian Ports Act13 empowers government to make rules for the
prevention of danger arising to the public health by the introduction and the
spread of any infectious or contagious disease from vessels; Section 26 B of the
11
Amarnath Tewary, ‘Coronavirus: Police, medical team attacked in Bihar’ (16 th April, 2020),
<https://www.thehindu.com/news/national/other-states/coronavirus-police-medical-team-attacked-
in-bihar/article31353013.ece> accessed on 10th May, 2020.
12
The Live-Stock Importation Act, 1898 <
https://indiacode.nic.in/bitstream/123456789/2330/1/a1898-09.pdf> accessed on 10th May, 2020.
13
The Indian Ports Act, 1908
<https://indiacode.nic.in/handle/123456789/2344?
view_type=browse&sam_handle=123456789/1362> accessed on 10th May, 2020.

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Drugs and Cosmetics Act14 empowers the Central Government to regulate,

restrict, or manufacture drugs in the public’s interest. 15 Also, as the state
government enjoys a discretionary powers in the matters relating to the public
health regulations which is exclusively enlisted under schedule VII of the
Constitution empowering the state governments to make any legislation for their
particular state, which again violates the uniformity in the law and lacks the
hormonised legal frame work at a national level to combat epidemic.

Even after having so many flaws in the Act has its own strength as well. The Act
provides balanced power between the state and central government, therefore they
can independently take measures by prescribing rule and guideline in regards to
control the outbreak of epidemic. It also makes disobedience of any regulation or
order made under this Act a punishable offence. And most importantly, it
provides protection to persons and officials acting under this Act regarding the
initiation of any legal proceeding against them for anything done or in good faith
intended to be done under this Act.16

CONCLUSIVE REMARKS

The Epidemic Diseases Act is one of the draconian piece of Legislation of British
India but still it is helping to very much extent in getting control over the
epidemic outbreak, the thing required is to amend it according to the need of time
as it is very vague and ambiguous for which the government has taken certain

14
The Drugs and Cosmetics Act, 1940 (23 OF 1940)
<https://upload.indiacode.nic.in/showfile?
actid=AC_CEN_12_13_00023_194023_1523353460112&type=rule&filename=Drugs%20and
%20Cosmetics%20Act,%201940%20and%20Rules,%201945.pdf >, accessed on 10th May, 2020.
15
Chiradeep Basak, ‘India Is in Need of an Inclusive Public Healthcare Law to Combat Pandemic’
(14th April, 2020) JURIST – Academic Commentary,
<https://www.jurist.org/commentary/2020/04/chiradeep-basak-public-health-law-india/>
accessed on 10th May, 2020.
16
Saurav Kumar Rai, ‘How the Epidemic Diseases Act of 1897 Came to Be’ (2020) The Wire <
https://thewire.in/history/colonialism-epidemic-diseases-act > accessed on 9th May, 2020.

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measures like, introduction of National Health Bill of 2009, is one of the most
compatible bill introduced by Government of India in regards to replace the
existing Act of Epidemic Diseases. The bill recognizes health as a fundamental
human right and was drafted in accordance to the Article 21 of the Constitution
which provides right to life as a fundamental right but also obliged the
government to provide health facilities to the people of the country without any
discrimination. Chapter 1 of this bill describes about the extent and definition of
various terminologies which are required to be explained in the context of the
spread of epidemic diseases for removing the ambiguity of the existing Act.
Second Chapter deals with various obligations of Central and state governments.
Third chapter of this bill provide rights and duties of people towards the health,
and one of the magnificent provision of this act was to guarantee equal facility of
resources to everyone irrespective of the fact that they are capable of accessing it
or not i.e. irrespective of their financial compulsions. It directs all health care
provider including private to provide necessary emergency medical treatment to
all needy person and providing all the necessary information regarding the
treatment. The bill accost on the respect of health workers and put an obligation
on people to refrain from any abusive violent behavior against them. It also
suggests for the establishment of National and State level Public Health Boards to
formulate policies on health, review strategies, and ensure minimum standards for
food, water, sanitation, and housing. Chapter 5 recommends for the dispute
resolution mechanisms in case of disputes like public dialogues, in house
complaint by the way of courts machinery. Overall, the Bill is an inclusive piece
of legislation which talks about the accountability of the state towards their
citizens by limiting the government power and ensures the protection of each
citizen rights in all circumstances. Also a Public Health (Prevention, Control and
Management of Epidemics, Bio-Terrorism and Disasters) Bill was drafted in 2017
which intended to replace the old Epidemic Diseases Act of 1897 but is not so

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comprehensive as to the bill of 2009 as it is violating the structure of federalism

and not as such oriented towards human rights aspect as the 2009 Bill was,
although the Bill is yet to be tabled in Parliament. Also with making of such
amendments the government should try to establish its own surveillances
committees to conduct area wise surveys regarding the medical necessities so as
to ensure an effective availability of the fundamental right to health to everyone.

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