New Delhi: India has invoked two laws, the Disaster Management Act and the archaic Epidemic Diseases Act, to control and mitigate the coronavirus outbreak.
The Ministry of Home Affairs has passed an order invoking the Disaster Management Act, 2005 under which the Union home secretary, who is the chairman of the National Executive Committee, delegated power to the Union health secretary to enhance the preparedness and containment of COVID-19. Dated 11 March, the order has been implemented retrospectively, and is in effect from 17 January.
The law details the constitution of administrative authorities like the National Disaster Management Authority, their powers, steps needed to be taken in a situation of disaster, penalties, and rules.
Most Indian states have been invoking this law to implement measures like quarantine and mandatory screening even though the Act is quite short and outdated. The century-old law allows states to take whatever measures they need to implement to prevent infections, and anyone contravening them can face prosecution, including imprisonment up to six months.
Speaking to ThePrint, legal experts said the Act does not reflect the realities of the spread of disease in the modern world, nor does it cover the framework to effectively respond to the outbreak. This is why India needs a modern public health law.
However, the experts added that the Modi government has implemented both the laws in tandem.
“It’s a two-pronged approach where the containment is done by The Epidemic Diseases Act and the Disaster Management Act, 2005 has come into play since it has provisions for administrative set up to take this action,” said Yogini Oke, project fellow, Vidhi Centre for Legal Policy.
As several states go under a prolonged lockdown starting Monday, ThePrint highlights details of the laws being used.
What the 1897 law says
The Epidemic Diseases Act, 1897, was enacted as a response to the Bombay plague that spread across the country and led to the death of thousands.
The legislation is a two-page four-section document, which defines neither a ‘dangerous epidemic disease’ nor an epidemic.
Section 2 of the law authorises state governments to take exceptional measures and prescribe regulations that are to be observed to limit the spread of the disease.
Consequently, the Himachal Pradesh government has announced The Himachal Pradesh Epidemic Disease (COVID–19) Regulations, 2020, the Delhi government has announced The Delhi Epidemic Diseases COVID–19 Regulations, 2020, and the Government of Maharashtra has announced The Maharashtra COVID–19 Regulations, 2020.
Section 3 makes it a criminal offence to disobey any regulation or order under the Act. This punishment is according to Section 188 of the Indian Penal Code, which provides for a fine of Rs 200 and simple imprisonment of one month for violating an order of a public servant. The penalty of Rs 1,000 and imprisonment of six months can also be imposed, depending on the impact of the disobedience.
Section 4 gives protection under the law to officials and/or persons acting under the law.
Section 2A empowers the central government to inspect ships or vessels leaving or arriving at any port in India and detain people if necessary.
In 2009, the Maharashtra government invoked the Act in Pune to combat the swine flu outbreak. In 2015, it was invoked to deal with dengue and malaria in Chandigarh.
Why it’s a ‘pre-constitutional law’
Many health and legal experts have described the legislation as draconian and outdated.
For instance, the law talks about inspecting ships or vessels, but fails to address the increasing international travel, especially by air, greater migration, increased urbanisation, high density of people in the cities, and change in the technologies of mass food production.
Delhi-based lawyer Pratik Patnaik called it a “pre-Constitutional law which empowers the central and the state governments to take sweeping actions without any Parliament oversight whatsoever”.
He also cited lack of accountability in the law and said, “The notifications/orders issued thereunder are pure executive actions which can be further delegated to junior executives with little or no accountability.”
Patnaik further pointed out that the law is from a time when there was no concept of fundamental rights, and claimed that in its current form, it violates these rights.
“The law hails from a time we had no concept of Fundamental Rights because guess what, it was drafted for a time where we didn’t have a Parliament and the Governor General’s Council ruled over our fates from Whitehall, England,” he said.
“Restricting the right of the citizens to enter India (or making it difficult) is not only a denial of fundamental right of free movement in India but also right to healthcare in India,” he added.
P.S. Rakesh, a public health expert in Kerala who was closely associated with managing the 2018 Nipah outbreak, echoed these concerns. He said the legislation puts too much focus on the duties of the government in preventing and controlling epidemics, but not on the rights of the citizens.
“It (also) does not mention any scientific steps that the government needs to take to contain or prevent the spread of a disease,” he added.
While it is reasonable for the states to have powers to impinge on personal rights during outbreaks, it should be done in an objective way, said Anant Bhan, a bioethics researcher, and adjunct faculty at Yenepoya (Deemed to be ‘University’), Mangaluru.
“There needs to be a standard framework that will tell you under what circumstances states can do that [take away rights] and for how long and who needs to take the decision and ensure that people have access to basic services — food, water, sanitation and personal entertainment while their personal freedom is taken away,” he said.
Rakesh said there is a need for an integrated, comprehensive, holistic provision for the control of disease outbreaks in India that also takes the rights of the people into account.
Laws cannot work in isolation
Meanwhile, the Disaster Management Act, 2005 also has provisions for the government to allocate resources to prevention, mitigation, capacity building etc.
“The Disaster Management Act, 2015, gives considerable freedom to the government to take decisions and spend money from Disaster Relief Fund and empowers district magistrates with wide powers for requisition resources,” said Rajeev Sadanandan, former additional chief secretary, Kerala, who led the efforts to contain the Nipah outbreak in the state in 2018.
While using both the laws together is innovative, a more comprehensive way to deal with such situations in the future would be to revisit and strengthen the Epidemic Diseases Act, said Oke.
There have been attempts in the past to replace the law. The central government conceptualised the Model Public Health Act in 1955 and updated it in 1987. It, however, failed to convince the states to adopt it.
The draft Public Health Bill, 2017, which looked at the control of epidemics, disasters and acts of bio-terrorism, also attempted to overhaul the current system. This bill would have replaced the 1897 law, but it has still not been tabled in the Parliament and is under the law ministry’s consideration.
However, just replacing one law with another is not going to solve the problem. Without an efficient surveillance system, strong public health cadres and epidemiologists to provide technical inputs and guide policies, our efforts to manage disease outbreaks may not succeed, said Bhan.