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BATTLING AN EPIDEMIC: LEGAL

AUTHOR: SAMEEKSHA KASHYAP

CONTENT

I. INTRODUCTION………………………………………………...PG. 03

II. THE EPIDEMIC ACT: A CRITICAL APPRAISAL…………….PG. 04

III. APPROPRIATENESS OF INVOKING THE NDMA ……….….PG. 09

IV. CONCLUSION………………………………………...…………PG. 10

V. BIBLIOGRAPHY………………………………………….……..PG. 13
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INTRODUCTION

In a federal democracy such as India, where legislative powers have been constitutionally
demarcated, the subject-matter of public health demands a high-level of cooperation between all
the constituent tiers of the federal State. It is a sphere where both the Central and State
Governments are constitutionally empowered to legislate, even though the subject of public
health and sanitation is present in State list1. The Union law may deal with port quarantine,
including quarantine in connection with seamen’s and marine hospitals.2 The law may also deal
with interstate migration and quarantine. State law may provide for matters relating to public
health and sanitation, hospitals, and dispensaries.3 The central government and state laws may
also provide for the prevention of the transmission from one state to another of infectious or
contagious diseases or pests affecting humans, animals, or plants.4

The Supreme Court of India has articulated in several landmark judgments 5 has recognised that
the right to health is integral to the right to life under Article 21 of the Constitution of India.
While on the one hand, the right to health is guaranteed as a fundamental right, the Constitution
also imposes a positive duty on the State under Article 47 to raise the level of nutrition and the
standard of living, and to improve public health to ensure the right to healthcare.

With the outbreak of the novel COVID-19 (Coronavirus), several Union and State legislations
have been set into motion and put into operation, throughout India, to prevent the spread of the
epidemic such as, the Indian Ports Act, the Aircraft Rules, the Livestock Importation Act and
Drugs and Cosmetic Act. However, in the absence of a comprehensive legal framework to
regulate State responses to health emergencies such as pandemics of likes of Coronavirus 6, the
main legislations that have been invoked are the Epidemic Diseases Act of 1897 (EDA), the
1
India Const. 7th Sched., List II, Entry 6.
2
Id.,List I, Entries 28 & 81.
3
Id. At 1.
4
Id. List III, Entry 29.
5
Consumer Education and Resource Centre v. Union of India, AIR 1995 SC 636; State of Punjab and Others v.
Mohinder Singh, AIR 1997 SC 1225.
6
India declares coronavirus outbreak as a notified disaster, LIVEMINT (Apr. 12,2020, 12:05 PM),
https://www.livemint.com/news/india/india-declares-coronavirus-outbreak-as-a-notified-disaster-
11584184739353.html.
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National Disaster and Management Act of 2005 (NDMA) and Section 144 of the Code of
Criminal Procedure, 1973

At the centre of the outbreak, is the EDA, a very short and archaic colonial-era legislation. The
EDA was passed in 1897 with the aim of better preventing the spread of “dangerous epidemic
diseases”. It evolved to tackle the epidemic of bubonic plague that broke out in the then Bombay
state at the time. The Governor General of colonial India conferred special powers upon the local
authorities to implement the measures necessary for the control of epidemics. The Epidemic
Diseases Act is one of the shortest Acts in India, comprising just four sections. The first section
explains the title and the extent, while the second gives powers to the states and Central
government to take special measures and formulate regulations that are to be observed by the
people to contain the spread of disease. The third section describes penalties for violating the
regulations, in accordance with section 188 of the Indian Penal Code. The fourth deals with legal
protection to the implementing officers acting under the Act.7

THE EPIDEMIC ACT: A CRITICAL APPRAISAL

In recent times, EDA has been invoked by a number of states to deal with the pandemic H1N1
(“swine flu”) influenza and other communicable diseases. In 2018, the District Collector of
Gujarat’s Vadodara issued a notification under EDA declaring Khedkarmsiya village of
Vadodara District as Cholera affected after thirty-one persons complained of symptoms of the
disease. The Act was implemented in Chandigarh in 2015 to deal with Malaria and Dengue and
controlling officers were instructed to ensure the issuance of notices and challans of Rs. 500 to
offenders. In 2009, in order to tackle the swine flu outbreak in Pune section 2 of the Act was
used to open screening centres in civic hospitals across the city and swine flu was declared as a
notifiable disease in India.

Section 1 says that the act may be called as Epidemic Diseases Act, 1897 and it extends to the
whole of India except the territories, which immediately before the 1st November, 1956,
comprised Part B states.
7
PS Rakesh, The Epidemic Diseases Act of 1897: public health relevance in the current scenario,3, Indian Journal
of Medical Ethics ( July-September 2016).
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Section 2 of EDA states that when the state government is satisfied that the state or any part
thereof is visited by or threatened with an outbreak of any dangerous epidemic disease; and if it
thinks that the ordinary provisions of the law are insufficient for the purpose then the state may
take, or require or empower any person to take some measures and by public notice prescribe
such temporary regulations to be observed by the public. The state government may prescribe
regulations for inspection of persons travelling by railway or otherwise, and the segregation, in
hospital, temporary accommodation or otherwise, of persons suspected by the inspecting officer
of being infected with any such disease.
Section 2A empowers the central government for inspection of any ship or vessel leaving or
arriving at any port and for detention thereof, or of any person intending to sail therein, or
arriving thereby. Section 3 prescribes penalty for disobeying any regulation or order made under
the Act in accordance with section 188 of the Indian Penal Code. Under this provision, a
punishment of 6 months imprisonment or 1,000 rupees fine or both shall be meted out to the
person who disobeys any order under the Act. Section 4 clearly mentions that no suit or other
legal proceeding shall lie against any person for anything done or in good faith intended to be
done under this Act

The Epidemic Act was brought as legislation in a socio-economic as well as political context that
is far removed from ours. The era of its genesis was 1890’s when India was a colonial state
where the jurisprudence of human rights and notions of privacy and freedom of occupation and
free movement were absent as underlying considerations on the basis of which legislation, which
dealt with tackling the spread of dangerous diseases and epidemics, were to be framed. It was a
time when air travel was unimaginable and communication technologies such as telephone,
television and the internet did not exist as well as, an era when populations were not clustered in
urban spaces,the way they exist in the present day. Today the private sector accounts for 70% of
India’s healthcare and is at the fore-front of fighting the outbreak of dangerous epidemics but
there are no provisions in the EDA that deal with a public-private sector cooperation based
approach and regulation of the private sector in itself. Thus, the EDA reflects the scientific and
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legal standards that prevailed at the time when it was framed and is not in consonance with
contemporary scientific understanding of outbreak, prevention and response.8

The EDA does not have a definition clause and thus, fails to define important terms such as
“dangerous”, “infectious”, or “contagious diseases”, let alone an “epidemic”. There is no
elaboration in the Act on the extant rules and procedures for arriving at a benchmark to
determine that a particular disease needs to be declared as an epidemic. The law is silent on the
steps to categorise an epidemic as “dangerous” based on variables like the scale of the disease,
the distribution of the affected population across age groups, the possible international spread,
the severity of the malady, or the absence of a known cure. It is essential to know who decides
on what a “dangerously epidemic disease” is and what criteria the definition is based on, if we
are to prevent misuse of the Act and also for transparency.

Section 2 of the Act provides that “the state may empower any person to take some measures”.
Today, the structure of the public health system has advanced such that specific people are in
charge of delivering primary, secondary as well as tertiary healthcare services. The prevention of
outbreaks of epidemic diseases and their control is the responsibility of primary care. The
Integrated Disease Surveillance Programme (IDSP) is in place for the early detection of
outbreaks. The District Chief Medical Officer, along with the district-level team and the primary
health centre medical officer, field workers and other community health workers, lead the
workforce for the control and prevention of outbreaks. When such a system is in place, going by
the Act’s prescription that “any” person may be empowered does not make sense. The word
“any” cannot be accepted in the current context, and “who” can do “what” needs to be specified.9

The Epidemic Diseases Act being purely regulatory in nature, lacks a specific public health
focus. It does not describe the duties of the government in preventing and controlling epidemics.
The Act emphasises the power of the government, but is silent on the rights of citizens and the
obligations of the State. It has no provisions that take the people’s interest into consideration.
The Act fails to provide equal access to healthcare services at a time of an epidemic outbreak.
Another count on which the Act fails, is defining the rights, safety standards and obligations of
8
Id.
9
Id.
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the healthcare professionals and other workers in the healthcare sector, alongside the
responsibility of civil society during such a crisis.

The Act is also silent on the ethical aspects of human rights principles that come into play during
the response to an epidemic. Individual autonomy, dignity, liberty and privacy should be
respected to the greatest extent possible, even during the enforcement of laws. It would have
been good if the Act stated clearly the situations under which the authorities may curtail the
autonomy, privacy, liberty and property rights of the people.

By its very nature, the ambit of section 2 of the EDA is wide enough to allow a state or a lower
functionary in the administration, in dealing with an emergency caused by the outbreak of a
dangerous disease, to seek or require the cooperation of the public or corporate bodies in the
public or private sectors. If the desired cooperation is not forthcoming, a regulation may be
imposed. Failure to obey or comply with restrictions imposed by such a regulation constitutes a
punishable violation under Section 3 of the EDA. Quarantine is a measure that adversely affects
the fundamental right “to move freely throughout the territory of India.” 10 However, this right is
to be enjoyed subject to reasonable restrictions that the state may impose in the interest, among
others, of the general public.11

Section 4 of the EDA includes a ‘protection clause’ that gives state immunity such that “no suit
or other legal proceeding” can be brought against “any person for anything done or in good faith
intended to be done under this Act.” The protection provided under this section to state
functionaries has been used to commit excesses by the police against people since the colonial
era12 and in recent times, during the covid-19 lockdown the police were seen brutalising poor
migrant workers trying to migrate back to their native states from metropolitan cities. 13 In the
absence of a strong legal basis to stop people from gathering in public places the government has

10
India Const., art. 19(1)(d).
11
Id. art. 19(2), (4).
12
M.Echenberg, Plague ports: the global urban impact of Bubonic plague, 1894–1901, London: New York
University Press, 58 (2007).
13
Shahid Tantray and Ahan Penkar, A Lockdown and a Hard Place, THE CARAVAN (Apr. 15, 20, 8:00AM)
https://caravanmagazine.in/labour/in-photos-migrant-workers-face-police-violence-and-hunger-escaping-delhi-
during-lockdown; https://www.thehindu.com/news/cities/mumbai/coronavirus-migrant-workers-protest-outside-
bandra-railway-station-demand-help-to-return-home/article31341724.ece.
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had to resort to Section 144 of the Code of Criminal Proceedings to limit the spread of COVID-
19.The criminal law provision was used by police authorities to instill fear in the minds of the
people and further, inflict violence against the poverty stricken and vulnerable sections of the
society. One must bear in mind that other countries of the Commonwealth, that have analogous
legal provisions in criminal law such as Section 144, are not compelled to invoke them to control
the spread of an infectious disease due to well-structured and sensitive contemporary legislation
on public health situations14.

Another key area of concern with respect to the EDA is that it clashes with the right to privacy of
an individual. Right to privacy has been recognised by the Supreme Court of India as a
fundamental right under Article 21 of the Constitution.15 The right to privacy, which includes
personal autonomy, liberty and dignity, is a fundamental right. However, the right is subject to
reasonable restrictions such as in furtherance of public interest. The function of EDA being to
prevent the spread of a dangerous epidemic disease, the Act fulfills the criteria of legitimate aim
as it is enacted with the aim to serve the public interest. However, it falls short of satisfying the
doctrine of proportionality which stipulates that the nature and extent to which a law interferes
with fundamental rights must be proportionate to the goal it seeks to achieve. EDA provides no
safeguards against abuse of the discretionary powers conferred by it to state functionaries who
may abuse them to disproportionately invade the privacy of citizens with the ostensible goal of
tackling the epidemic disease, for instance by using their personal data, medical history and by
tracking them for other other purposes. In India, the states which have adopted the use of mobile
applications to track the quarantined individuals, in complete violation of the doctrine of
proportionality, provide no procedural safeguards.16

APPROPRIATENESS OF INVOKING THE NDMA

14
Manish Tewari, India’s Fight against Health Emergencies: In Search of a Legal Architecture, ORF Issue Brief
No. 349, Observer Research Foundation (March 2020).
15
Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors, 2017 10 SCC 1.
16
Akshit Sangomla, Covid-19: Experts raise privacy concerns about Aarogya Setu app, DTE (Apr.15,2020, 10:24
AM) https://www.downtoearth.org.in/news/science-technology/covid-19-experts-raise-privacy-concerns-about-
aarogya-setu-app-70453.
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On 23 March, the Union government, following an address by the Prime Minister invoked the
National Disaster Management Act of 2005 (NDMA), to seemingly provide a lawful basis for a
nation-wide lockdown. The NDMA offers a wide range of tools to combat disasters, establishing
a multi-tier system, with governments and authorities constituted under or brought within the
purview of the NDMA, operating at the national, state, district and local levels.

Wide ranging powers have been accorded to the functionaries under the NDMA, including
restricting or controlling traffic, people’s movements, making available necessary resources,
requiring experts and consultants in the field of disasters to provide advice and assistance for
rescue and relief, procuring exclusive or preferential use of amenities, deployment of military
forces, coordinating with other countries and international organisations etc. The NDMA
provides for formulation of plans, policies and guidelines at the national, state and district level,
and requires all authorities to act in accordance. In fact, any person obstructing the functioning of
any authority under the Act or implementation of its provisions, is liable to face punishment
under the NDMA.

While some might argue that the NDMA offers effective and even aggressive measures to
combat any kind of disaster including epidemics, such an approach is problematic because of
two issues.17

First, while the definition of a “disaster” under the DMA may be wide enough to include an
epidemic and while guidelines regarding biological disasters have been issued under the DMA, it
does not contain any provisions to specifically address the unique conundrums thrown up by an
epidemic, nor does it incorporate the nuanced approach required to be taken in public health
emergencies of such a level. Therefore, such an epidemic would require a more specific
legislation rather than being dealt with using a general law that lumps it with natural disasters or
even acts of bioterrorism.18

17
Sanjoy Ghose and Rhishabh Jetley,Does the Constitution Allow Modi to Declare a National Emergency Over
COVID-19?, THEWIRE.IN (Apr. 15, 2020, 3:00 PM) https://thewire.in/law/can-an-1897-law-empower-the-
modern-indian-state-to-do-whats-needed-to-fight-an-epidemic.

18
Id at 16.
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Secondly, considering the exponential rate at which the Coronavirus pandemic is growing, even
the aggressive measures provided for in the NDMA may fall short of adequately tackling it. 19
Therefore, it may be argued that there is a need for a comprehensive and separate legislative
framework that is constitutionally mandated to deal with the outbreak of dangerous epidemics.

The need for a specific legislation to replace EDA, was recognized by successive governments at
the Centre, and this desire led to the introduction of the National Health Bill in 2009, and the
Public Health (Prevention, Control and Management of Epidemics, Bio Terrorism and Disasters)
Bill, in 2017. The 2017 Bill, although visionary and innovative in some aspects, was criticised
for being dubious, restrictive and draconian by public health experts and also for being silent on
the obligations of the State during public health emergencies. 20  The Bill was not tabled before
the Parliament and EDA continues to remain in force till day as the sole law primarily dealing
with health emergencies

CONCLUSION: NEED FOR LEGISLATIVE REFORM

In the 248th Report of Law Commission of India, published in September 2014, titled “Obsolete
Laws: Warranting Immediate Repeal”, the Law Commission of India listed the Epidemic
Diseases Act, 1897 as one of the items that ought to have been repealed from the statute
books.21With the outbreak of the novel Coronavirus epidemic in different parts of India, several
states have hastily framed guidelines under the EDA to deal with the situation at hand. While the
widely worded Epidemic Act provides the States flexibility to frame measures that better suit the
conditions prevailing in their respective states, it also creates a problem of disparity in action
among different states in the country. It has, now become abundantly clear to the world that
dangerous epidemics do not respect either national or international borders. Thus, India needs a
set of healthcare laws and policies that are equipped to handle public health emergencies such as
outbreak of pandemics at the Union, State and District level.

19
Id.
20
Menaka Rao, A new bill on public health emergencies allows for dubious restrictions of citizens liberties,
SCROLLIN (Apr. 15, 2020, 12:13 PM) https://scroll.in/pulse/833283/a-new-bill-on-public-health-
emergencies-allows-for-dubious-restrictions-of-citizens-liberties;
https://www.downtoearth.org.in/news/health/draft-public-health-bill-riddled-with-issues-say-experts-57430 .
21
Megha Jani, Does the Epidemic Diseases Act, 1897 Need An Overhaul?, LIVELAW.IN (Apr. 14, 2020,
9:43 PM) https://www.livelaw.in/columns/does-the-epidemic-diseases-act-1897-need-an-overhaul-
155046?infinitescroll=1.
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The EDA is an archaic colonial-era law which is not suited to a modern democratic State such as
India. It gives wide-discretionary powers to the state functionaries to deal with spread of
dangerous epidemics, without taking into account any scientific considerations. The Act does not
define important terms, such as ‘epidemic’, ‘dangerous’ and ‘disease’. It does not delineate the
scope of powers it bestows on the Central and State governments, which makes it an arbitrary
and draconian piece of law with no safeguards against it abuse against political and civil rights of
the citizens. Abuse of legislations by state authorities and use of draconian laws by States are
ineffective in dealing with public health emergencies because epidemic can only be effectively
be dealt with when State and citizens cooperate with each other and such actions of the States
leads no loss of public confidence among the public. The Act places no positive obligations of
the government to ensure there is universal access to healthcare for citizens and individuals. The
Act does not place safeguards for the protections of rights of healthcare workers and personnel,
nor does it stipulate their duties during an outbreak. The Act is remains silent on the obligations
of the civic society as well.

The need of the hour is for the Union and State Legislatures to enact a set of constitutionally-
sanctioned laws that comprehensively, transparently and effectively address and deal with
regulation and management of public health emergencies. Laws which create systems to regulate
the movement of people at the time of an outbreak without arbitrarily depriving them of their
right to free movement, which contain provisions that deal with requisition and disposal of
property, legislations that lay down quarantine measures and provide protection to healthcare
workers, which regulate distribution of essential goods and that which, establish emergency
hospitals for primary healthcare. Such laws should also seek set-up a public health surveillance
system and reporting mechanism, which is in consonance of privacy jurisprudence expounded by
the Supreme Court of India in K.S. Puttaswamy judgement 22. In order to effectively tackle public
health emergencies the policymakers, legislators as well as medical, scientific and legal experts
must deliberate together and adopt the global best practices which are best suited to the
conditions in India, not evoke laws that have not been designed to fight epidemics and must also,
replace obsolete laws.

22
Id. at 15.
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BIBLIOGRAPHY
ACTS/STATUTES
 Constitution of India, Bare Act, Publish by Government of India, 1950.
 The Epidemics Diseases Act, 1897.
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 The National Disaster Management Act, 2005.

PAPERS
 PS Rakesh, The Epidemic Diseases Act of 1897: public health relevance in the current
scenario,3, Indian Journal of Medical Ethics ( July-September 2016).
 Manish Tewari, India’s Fight against Health Emergencies: In Search of a Legal
Architecture, ORF Issue Brief No. 349, Observer Research Foundation (March 2020).
 M.Echenberg, Plague ports: the global urban impact of Bubonic plague, 1894–1901,
London: New York University Press, 58 (2007).

WEBSITES
 www.jstor.org
 www.indiankanoon.org
 home.heinonline.org
 www.livemint.com
 www.caravanmagazine.in
 www.downtoearth.org.in
 www.livelaw.in
 www.scroll.in
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