As the daily cases of COVID-19 in India have proved all the expected rates of decline wrong, the Government continues to rely on the 123-year-old Epidemic Diseases Act, 1897 (“The Act”) to try and bring some semblance of control to the situation. The Supreme Court, in a decision dated 17th November 2020, refused to adjudicate on the constitutional validity of the Act and remanded the matter to a High Court. The present scenario has refueled questions on the legitimacy and effectiveness of this British-era legislation, which may be deemed as archaic in the present scenario. In the author’s opinion, there is a drastic need to overhaul this legislation according to the needs and technological capabilities of a modern India. An amendment is essential, if not a complete striking down of this Act.
The Act, divided into four sections, was envisaged to govern the country during large-scale breakouts like the pandemic we face today. Yet, according to the author, it possesses some fundamental flaws.
Firstly, the most glaring omission in the Act is that the term “epidemic” has not been defined in the entire Act. This leads to an inherent lack of clarity and objectivity, enabling misuse by the Government in the situation that it deems fit. The Act empowers the Government with certain special powers, but due to a lack of a definition, imposes no obligation on them to impose it within a reasonable time.
Secondly, the punishment for disobeying the provisions of this Act resides in Section 188 of the Indian Penal Code. This Section is a broad provision that deals with disobedience of any order issued by a public servant in general. There is a lack of efficient enforcement provisions that are focused on and suit the need of the Act – instead, it relies on general disobedience statutes. Further, the Section mandates either six-month imprisonment or a thousand rupees fine. This minimum sentencing may hardly prove as an effective deterrence during a pandemic and is hardly a befitting punishment for disobedience that may take lives. It is important to note that Section 270 deals with any malignant action that may spread diseases, inviting two years of imprisonment. Sections 269 and 271 deal with negligent actions that may spread diseases and disobedience of any quarantine rule respectively, both mandating six-month imprisonment. Despite the existence of these provisions, there is no mention of them in the Act. Due to this, recent orders issued by the Maharashtra, Haryana, and Telangana State governments regarding the COVID-19 pandemic also refer to only Section 188. Moreover, the Patna High Court in Raj Mangal Ram v State of Bihar made the usage of Section 188 stricter – a mere FIR is not enough, but it must be supplemented with a complaint filed under Section 195 of the Criminal Procedure Code as well. This decision has made the procedural aspect of punishment under the Act more long-drawn, making the case clear for alternative remedies as well.
Thirdly, the Act states that the Government may invoke its provisions whenever it is satisfied that ordinarily laws will not suffice. The word ‘satisfied’ here has an inherent ambiguity – the subjectivity of this term makes it amenable to misuse and wrongful invocation. The Act must deal with the manifest arbitrariness test as held by the Supreme Court in Shayara Bano v Union of India & Ors. The vague and ambiguous scope of the Act makes it vulnerable to be struck down as arbitrary and disproportionate under Article 14 of the Indian Constitution.
Fourthly, the Act completely fails to address issues vital to a 21st Century world. The Act refers to only land and sea routes. Since it was implemented at a time when air travel was barely active, the Act completely omits reference to disease management during aerial transport. This is one of the most essential problems that need attention in present times. It also ignores the implementation of large vaccine drives. The concept of vaccination, while quite nascent in 1897, has assumed a platform of global importance that definitely requires a mention in the Act.
A cumulative reading of the above points clearly demonstrates the gaping holes in the Act. The Act may also be weaponized to violate the rights of an individual. The recent ‘Aarogya Setu’ app of the Indian government traces and monitors individuals who may have COVID-19. The Government has contended that this app is a necessary and reasonable restriction on the right to privacy, as it is needed to control the pandemic, while critics have expressed concerns over its possible use for surveillance. Issues like these must be addressed by the Act.
The need for an overhaul of the act has become more pressing. The recent Epidemic Diseases Act (Amendment) Ordinance, 2020 has made violence towards health care workers punishable by 7 years of imprisonment. While it is definitely a step in the right direction, this move is far from sufficient. Firstly, the Indian Government may take inspiration from the International Health Regulations issued by the World Health Organization, which clearly outlines the obligations of the Government and possible actions that they make take to handle the situation. The importance of these regulations cannot be undermined – they bridge the gap between modern international standards and India’s colonial legislation.
Secondly, the Government must also endeavor to strictly enforce the National Disaster Management guidelines, 2007. The guidelines provide an overview of possible legal, financial, and administrative means to control a disaster. If these guidelines are carried out in tandem with the Act, it could enable a smoother functioning of health workers. A definitive link needs to be created between the Act and the guidelines to ensure uniformity and accountability in the workings of the State governments.
Lastly, The Public Health (Prevention, Control and Management of Epidemics, Bio-Terrorism and Disasters) Bill of 2017 (“The Bill”) gives a definition of an epidemic and provides various other health measures. This Bill was a much more comprehensive and modern bill that contained effective means to tackle a 21st Century Pandemic. Yet, it was never implemented and brought into law by the Parliament. It is essential that the provisions of this Bill be incorporated into the Epidemic Diseases Act, 1897 by virtue of an amendment. It is interesting to note is that the Bill had already envisaged SARS as an epidemic-prone disease, demonstrating the forethought and relevancy of this Bill. The Bill increased the punishment for disobedience to 2 years and also increased the fine to Rs. 10,000/- for the first offense and 25,000/- for subsequent offenses. These provisions would greatly benefit the Epidemic Diseases Act, 1897.
In conclusion, the Epidemic Diseases Act, 1897 has lost its effectiveness and relevancy in the modern world. Without the necessary changes, it remains an archaic and colonial piece of legislation that is open to misuse and constant criticism. At a time when the global standards for disease control have set an incredibly high threshold, the Indian government needs to realize the inadequacy of the current legislation.
Aman Saraf is a 2nd Year Student in the Government Law College, Mumbai, India with a keen interest in Indian commercial and constitutional law.
Suggested Citation: Aman Saraf, A Critical Analysis of India’s Epidemic Diseases Act, 1897, JURIST – Student Commentary, November 23rd, 2020, https://www.jurist.org/commentary/2020/11/aman-saraf-india-epidemic/.
This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org.
