By Ishan Bhatnagar and Ritesh Patnaik
As the Government of India has decided to ground all domestic flights for the first time[1] in India’s history and several states imposed a severe lock down,[2] the debate rolls on if the government is doing enough and if it is doing so early enough. While a few have criticized India’s low testing rates,[3] the officials have defended their approach of focus on testing citing capacity. The opinions have contrasted from India’s Startup Inc. writing to the government as early as March 17, 2020 to impose lock downs across all major cities to flatten the curve and suppress the spread,[4] whereas Pakistan PM Imran Khan ruled out a lock down in Pakistan citing the difficult choice between losing lives to COVID-19 and losing lives to hunger and poverty.[5] Amidst all these, an archaic 123-year-old Epidemic Diseases Act, 1987 that was meant as response to the Bubonic Plague in Bombay has been lifted straight from the archives even as the Government has taken shelter in the provisions of the Indian Penal Code.[6] Although there is nothing barring the government from taking resort to the Criminal Procedure Code for the enforcement of law and order, the principle of legitimacy requires that the extraordinary powers are derived from a special act regulating such powers.
The Epidemic Diseases Act, 1987[7] (‘the Act’) comprises of merely four provisions, and summarily, grants extraordinary powers to the Government to take any such measures and by public regulations, prescribe such temporary legislations to be observed by the public as it deems necessary to prevent the outbreak of disease.[8] While it does provide the Central and State Governments the wherewithal to act decisively and effectively in a moment of crisis, it fails on three major accounts: first, it does not provide any institutional machinery towards such action; second, it fails to define a dangerous epidemic disease or lay down an objective criterion for when the Act must be invoked and when the extraordinary powers assumed by the Government must be relinquished, third, it also fails to address the question of funds and the relative role of the Central and State Governments.
Clearly, the Act, passed by a regime responsible for about 12-15 million Indian deaths due to cholera in 1918,[9] is grossly inadequate in the face of a severe challenge such as the one India currently faces that would require streamlined, coherent and coordinated efforts along with tremendous data-inputs and macro-planning: a distinguishing feature of states combatting the virus relatively successfully such as Singapore,[10] Republic of Korea,[11] Denmark,[12] etc. Such a standard operating procedure helps in better coordination among the administrative and health officials, lesser panic among the people as well as better policies in times of emergency. In fact, the question of amending the Act has come up twice in Parliament in recent history, in both 2008 and 2017, both times being answered in the negative, over, inter alia, the question of state autonomy vis-à-vis the Center. In fact, a PIL has also been filed[13] before the Karnataka High Court that particularly focuses on the greater likelihood of the spread of infectious diseases in jails as well as district courts and the statutory requirement that the Government take prompt action when confronted with an epidemic.
The Act does not authorize the government to screen passengers at airport or even impose a lock down. By declaring the Coronavirus a national disaster,[14] the government is able to invoke the Disaster Management Act, 2005,[15] a comprehensive law empowering the executive to deal with the crisis. However, that blurs the line between a disaster and an epidemic. Moreover, the disasters are handled by the Ministry of Home Affairs while the Ministry of Health is the appropriate forum for the coordination in times of outbreak of a disease, or in this case, a pandemic. However, under the Epidemic Diseases Act, the Allahabad High Court has interpreted Section 2 to authorize not only the government to promulgate a regulation itself but also to require or empower any other person to take actions that may be deemed necessary. This may include the Chairman of a Municipal Board or the Medical Officer of Health as well.
The Public Health (Prevention, Control and Management of Epidemics, Bio-Terrorism and Disasters) Bill of 2017[16] (‘the Bill’) represents a more contemporary response to Epidemics, while also addressing bio-terrorism. The Bill is extremely comprehensive in its definitions and adequately deals with the fundamental problem of an act not really defining the subject matter that it deals with. Section 2(m) defines Epidemic in terms that correspond exactly to the WHO definition. It is also extensively detailed in formulating potential responses by a State Government or administration of any Union Territory or district (through Section 3) and the Central Government (Section 4) than the ‘do as you please’ treatment in the Epidemics Act.
In fact, the Bill proves to be prophetic of Government response to the present crisis in that it empowers officials to quarantine or restrict movement, isolate victims of the disease, conduct medical examination, prohibit activities inimical to public health, direct a clinical establishment to admit, isolate or manage cases as well. The Central Government is placed at a supervisory role and empowered to give directions to the State Government or administration of Union Territory, that would be required to comply with said direction. The Bill also changes the penalty for contravention of any of its provisions from a maximum of six months’ imprisonment and/or a fine of one thousand rupees (provided under Section 188 of the Indian Penal Code)[17] to a maximum fine of one lakh rupees in the case of repeat willful or intentional contravention and/or up to two years if imprisonment (Section 5). The stringent civic liability on individuals would have had a better deterrent effect given the affluent socio-economic background of offenders, mostly foreign travelers, who have been defying the government’s COVID-19 advisory. Moreover, a strict liability could be imposed on failure to disclose travel details as well as non-compliance of other guidelines related to documentation disclosure where a criminal sanction may be difficult to sustain.[18] Singapore’s Infectious Diseases Act further provides for stringent fines in cases of liability by individuals, corporations and in cases of default to respond to notices as well.[19] This can be further useful in enforcing work-from-home orders to services that can perform virtually as well as improve efficacy of lock down orders. Further, the lock down orders can be derived from the Danish law that includes closing off areas, measures to ensure supply as well as restrictions on access to business facilities.[20]
While the Bill makes substantial improvements on the present Act, it fails to address the three major shortcomings of the Act and thus would potentially fall short of its mandate on a long-term. The absence of an objective basis to ascertain an epidemic, important both for timely action and acting as a statutory check on the unfettered powers entrusted on the government, which, in the present Act, was in fact misused by the Colonial Government[21] is somewhat countered through the comprehensive definitions present in the 2017 Bill. However, the process of relinquishing of extraordinary powers by the Government has also not been clearly delineated in the Act and requires statutory basis.
In order to ensure preparedness against epidemics, the response must be institutional: in that existing institutions be streamlined and new institutions be built in order to ensure that the many functions and powers listed in the Bill are exercised in a timely and responsive manner. The research on the spread of the Coronavirus shows how early and prompt response can lead to considerably lesser number of infections and deaths (termed as ‘flattening the curve’).[22] In terms of an institutional machinery, a clear- cut hierarchy and well defined protocols in terms of responsibility and obligations are required. In light of this, a body responsible for monitoring the spread of communicable diseases with real-time information and communication inflow from privately and government owned hospitals, research labs, clinics etc. across the country can significantly assist to track quarantined patients, disseminate accurate information as well as live-track positive cases.[23]
To this extent, The National Centre for Disease Control (hereinafter “NCDC”), under the Ministry of Health and Family Welfare, is mandated, inter alia, to take a ‘leading role in undertaking investigations of disease outbreaks all over the country’.[24] On paper, it has eight out-station branches, several technical divisions and a disease monitoring cell to respond to inquiries related to disease outbreaks. However, in order to truly tackle pandemics the scale of the Coronavirus, we must have institutions with a far more proactive and global outlook that must be mandated to pre-empt, investigate and tackle the spread of infectious epidemic diseases. The existing institutions fall short of the requirement of a pan-India systematic hierarchy of institutions.
The National and State Public Health Boards envisaged in the National Health Bill of 2009[25] (hereinafter “2009 Bill”) are closer to the institutions required in order to truly build up long-term preparedness. These bodies have been conceptualized as the implementing and monitoring mechanism towards ensuring that the rights provided for under the 2009 Bill are upheld. Thus, their mandate and consequentially powers and obligations are broader than what would be required under an Act specifically dealing with epidemic diseases. The 2009 Bill also somewhat attempted to delineate the roles and obligations of the Central and State Governments through Sections 6(1) and 6(2) respectively. However, the 2009 Bill failed to fructify on protests of curtailing states’ autonomy in the first place and thus individual obligations and provisions would have to be negotiated in parliament in order to come to consensus. The hierarchical scheme conceptualized within the 2017 Bill helps ensure a somewhat concerted and centralized response but must further be nuanced in order to ensure real-time monitoring, access to resources and compliance.
Despite both the bills, the aspect of relief funds remains unaddressed. In the presence situation, with the Government having declared COVID-19 as a notified disaster,[26] assistance is now available under the State Disaster Response Fund (SDRF).[27] Conventionally, the fund is meant to be used towards assistance in instances of natural calamities such as hailstorms, landslides and the like. In fact, in the absence of a separate relief fund stipulated for epidemic diseases, it is likely that the State Disaster Relief Fund would be strained and insufficient, particularly in the instance of epidemic diseases accompanying a natural disaster, such as the tropical cyclones in the Indian Ocean Cyclone season or the unseasoned floods (like the Uttarakhand Tragedy 2013, Jammu and Kashmir Floods 2014), and thereby magnifying the damage to life and property.
Article 21 of the Indian Constitution[28] has to be read in conformity with Article 25 of the Universal Declaration of Human Rights,1948[29] according to the Hon’ble Supreme Court.[30] The Apex Court has time and again held that the right to health is an inseparable part of right to life and that the government has a constitutional obligation to provide health facilities.[31] While the WHO has termed India’s lock down as “comprehensive and robust”, the bigger tests of surveillance and treatment lies ahead. While the response to any pandemic depends on proactive governance and the citizens’ cooperation, a comprehensive law can assist in better coordination and clarity to both the administrators and citizens.
Both the authors, Ishan Bhatnagar and Ritesh Patnaik, are 2nd Year B.A. LLB. (Hon.) students at the National Law University, Delhi.
[1] Lalatendu Mishra, Coronavirus set to ground all planes, The Hindu (Mumbai, March 23, 2020) accessed on March 24, 2020.
[2] ’30 States, UTs under complete lockdown, Economic Times (March 23, 2020) available at accessed on March 24, 2020.
[3] Soutik Biswas, ‘Coronavirus: Why is India testing so little?’ BBC (March 20, 2020) accessed on March 24, 2020.
[4] Aaron E. Carroll, Ashish Jha, ‘This is How we Can beat the Coronavirus’ The Atlantic (March 19, 2020) accessed on March 24, 2020.
[5] Pamela Constable, Shaiq Hussain, ‘Pakistan locks down province, bans international flights as coronavirus spreads’ The Washington Post (March 23, 2020) accessed on March 24, 2020.
[6] ‘The 123-year-old law that India may invoke to counter coronavirus’ , The Economic Times (March 12, 2020) accessed on March 24, 2020.
[7] The Epidemic Diseases Act, 1897 (Act No. 3 of 1897).
[8] The Epidemic Diseases Act, 1897, s. 2.
[9] David Arnold, ‘Cholera and Colonialism in British India’ 1986 P&P 118-121.
[10] The Infectious Diseases Act, 1976 (Singapore).
[11] Quarantine Act, 2017 (Republic of Korea).
[12] Danish Epidemic Act, 2020 (Denmark).
[13] R.M. Biju, ‘Coronavirus: PIL filed before Karnataka HC to amend Epidemic Diseases Act, 1897, constitute Epidemic Disease Control Board’ Bar and Bench (March 21, 2020) accessed on March 24, 2020.
[14] Iftikhar Gilani, ‘India, Pakistan grappling with archaic epidemic law’ Anadolu Agency (March 31, 2020) accessed on 4 April 2020.
[15] The Disaster Management Act, 2005.
[16] Public Health (Prevention, Control and Management of epidemics, bio-terrorism and disasters) bill, 2017.
[17] The Indian Penal Code 1860, s. 188.
[18] J. McCurry, R. Ratcliffe, H. Davidson, ‘Mass Testing, alerts and big fines: the strategies used in Asia to slow Coronavirus’ The Guardian (March 11, 2020) accessed on March 24, 2020.
[19] The Infectious Diseases Act, 1976 (Singapore) s. 65, 67.
[20] Danish Epidemic Act, 2020 (Denmark).
[21] Tarangini Sriraman, ‘Plague passport to detention- Epidemic Act was a medical surveillance tool in British India’ The Print (March 22, 2020) accessed on March 23, 2020.
[22] Imperial College Covid-19 Response Team, ‘Impact of non-pharmaceutical interventions (NPIs) to reduce COVID19 mortality and healthcare demand’ Imperial College (March 16, 2020) accessed on March 24, 2020.
[23] Elizabeth Law, Chang May Choon, ‘How China, South Korea and Taiwan are using tech to curb coronavirus outbreak’ The Straits Times (March 21, 2020) accessed on March 24, 2020.
[24] Directorate General of Health Services (Ministry of Health and Family Welfare), ‘National Centre for Disease Control – Mandate’ accessed on March 24, 2020.
[25] National Health Bill of 2009 (Govt. of India Working Draft, Jan. 2009) accessed on March 24, 2020.
[26] ‘India declares coronavirus outbreak as a notified disaster’ Livemint (March 14, 2020) accessed on March 24, 2020.
[27] Government of India (Ministry of Home Affairs), Items and Norms of Assistance (Letter) accessed on March 24, 2020.
[28] The Constitution of India, Art. 21.
[29] The Universal Declaration of Human Rights, 1948 (GA 217 A), Art. 25.
[30] ESC Ltd v. Subhash Chandra Bose (1992) 1 SCC 441 [462].
[31] State of Punjab v. Mohinder Singh Chawla (1997) 2 SCC 83.
The Journal of Indian Law and Society 