In the wake of the global and highly contagious COVID-19
pandemic, sudden drastic measures had to be enforced around the world to
curtail the spread of this mutant Coronavirus.The most common and prevalent of
these measures center around quarantining people to their homes or at hospitals
in order to isolate the cases. These restrictions, by their very nature, come
into conflict with the freedoms enjoyed by citizens under ordinary
circumstances – requiring a robust legal framework to put into action. Below,
we will discuss the legal framework used by the Central and State Governments
to put these restrictions into place.
Epidemic
Diseases Act, 1897
Since restricting movement and social distancing are
the key factors to slowdown the transmission of the virus, in India both the
Central and many State Governments did so by invoking a123-year-old Act known
as the Epidemic Diseases Act, 1897 to combat the impending threat of COVID-19.
It is a special law first enacted across the Presidency of Bombay in 1896 to
control the spread of the bubonic plague back then, empowering the government
to adopt special measures and enforce strict policies, so as to prevent the
outbreak of any dangerous epidemic disease.
The Act, which spans only four sections,is invoked
when the existing provisions like the Indian Penal Code turn out to be
insufficient to contain an epidemic. Interestingly, the Epidemic Diseases Act
does not define what an epidemic disease is. There is no clear definition of
whether an epidemic is "dangerous" on the basis of the magnitude of
the problem, the age of the population affected or its potential to spread
internationally.
Section 2 of the Act gives state governments “power
to take special measures and prescribe regulations as to dangerous epidemic
disease”This particular section is important as it grants state governments
discretionary powers to mold restrictions as and when they are needed to
contain the outbreak. The Act further empowers the government to imprison any
person found to be in violation of the prescribed measures. It grants special
powers to both the Central as well as the State governments to declare any
region as "threatened" and to take measures for containment, like
screening of travelers, inspection of vessels, special wards for affected
persons, etc.
Section 2A of the Act empowers the Central
government to take measures and prescribe regulations for the inspection of any
ship or vessel (since much of the transport back in 1896 involved vessels)
leaving or arriving Indian territory and for such detention thereof wherever
necessary. Similarly, the State governments have the power to “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…".
The provision further provides that the State
Government may take measures and prescribe regulations for the inspection of
persons travelling by railway and segregate people in hospitals if they are
suspected of being infected. The use of words like "such regulations as it
deems fit" confer sweeping discretion on the government to inspect any person
or place which it suspects to be infected.
According to Section 3 of the Epidemic Diseases Act
1897 violation of any regulations issued under the Act will be an offence under
Section 188 IPC. Section 188 deals with the offence of "Disobedience to
order duly promulgated by public servant".
Section 188 imposes punishment on whoever disobeys an
order duly promulgated by a public servant. It prescribes the punishment for
disobedience of the lawful orders of a public servant, especially when the disobedience
results in obstruction, annoyance or injury to any person lawfully employed or;
danger to human life, health or safety.Furthermore, according
to Section 4 of the Epidemic Diseases Act, no suit or other legal proceedings
shall lie against any person for anything done in good faith under the act.
Currently most Indian
states have used a combination of the Epidemic Diseases Act and Section 144 of
the Criminal Procedure Code to impose restrictions. Under Section 144, an
executive magistrate can issue any order restricting any individual or group of
individuals from committing certain acts.
CONCLUSION
The Epidemic Diseases Act 1897, which is more than a
century old, has major limitations when it comes to tackling the emergence of
communicable diseases in the country. Over the years, many states have
formulated their own public health laws and some have amended the provisions of
their epidemic disease Acts. However, these Acts vary widely from state to
state. Even though it confers enough powers for governments to impose
quarantine and issue guidelines based on the situation as done in the current
situation, there is a dire need for a comprehensive, actionable and relevant
legal provision for the control of outbreaks in India that should be formulated
in a rights-base and public health-oriented manner.
Originally published on www.kpalegal.com on 11th April 2020
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