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COVID-19: Analysis Of Existing Indian Legal Framework To Deal With The “Pandemic”

COVID-19: Analysis Of Existing Indian Legal Framework To Deal With The “Pandemic”

Introduction: 

On March 12, 2020 World Health Organisation (WHO) classified and declared the novel corona virus (COVID-19) a pandemic. WHO defines pandemic as the worldwide spread of a new disease. At the time of writing of this article according to WORLDOMETER 173,282 people have been affected till date, 6,665 have died and 77,789 have recovered from the disease of COVID-19 and among all three categories, China is at top. COVID-19 has reached 159 countries and territories and this has led to countries putting ban on travel and mass-gathering. 

India on March 14, 2020 declared COVID-19 as a national 'disaster' and as a precautionary measure suspended all tourist visas, as a majority of the confirmed cases were found to be linked to other countries. Following this various state governments in like Delhi, Haryana, Karnataka, Rajasthan, Maharashtra and Uttar Pradesh have declared COVID-19 as epidemic. 

Both centre and state governments will work day and night to curb the spread of this pandemic and no government can work without the support of law and legal framework backing it. What are the laws in the hands of state that give power to use force against any person to place them in quarantine? What are the laws in force which speak of epidemic control? You can get all the answers here. 

Indian legal framework:

Following two legislations have been invoked by both central and state governments to tackle the spread of COVID-19. 

1: Epidemic Diseases Act, 1897 (hereinafter Act of 1897) (fun fact: it is one of the shortest Acts in India, comprising of just four sections.)

This act, as evident from the year of its enactment, is a colonial era legislation, which was first enacted to tackle bubonic plague in Bombay state in former British India. Act has provision for the better prevention of the spread of dangerous epidemic disease, and for that special powers have been given to Central and State governments. As a directive, the Cabinet Secretary of India on March 11, 2020 has directed all the states and UTs to invoke Section 2 of Act of 1897, which will make all advisories being issued from time to time by the Ministry of Health Welfare/State/UTs enforceable in the court of law. 

Section 2 describes the powers of the government, “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 or by any person or class of persons. The state government may prescribe regulations for the 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 was inserted by amendment in 1920 to empower the central government to take steps to prevent the spread of an epidemic. It also allows the Central government to inspect any ship arriving or leaving any post and detain any person intending to sail or arriving in the country.

Penal provision is enumerated in Section 3 of the Act, which says that “any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under section 188 of the Indian Penal, 1860”.

Section 188 says that “Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any persons lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.”

Section 4 grants legal protection to officers implementing directions issued by government under the Act as no suit or other legal proceeding will lie against them. 

Two constitutional experts and former Secretary Generals of the Lok Sabha P.D.T. Acharya and Subhash Kashyap have said that there is nothing wrong if government has decided to implement this colonial-era law, as it still exists as a good law. They also said that there is no need to amend a law, as it has been successfully used in past by many state governments. As a matter of fact, last time, the Act was used in Gujarat in 2018 to curb the spread of Cholera and before that in 2015, it was used in Chandigarh to deal with dengue and malaria.

 

2: Disaster Management Act, 2005 (hereinafter Act of 2005)

This act has provisions for the effective management of disaster and matters connected with it. Disaster is defined in section 2(d) in a very wide manner as “a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or manmade causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area”. This definition is sufficient to encompass COVID-19.

Section 3 proposes the establishment of National Disaster Management Authority (NDMA) and section 8 has provision for the constitution of a National Executive Committee (NEC) to assist the National Authority in the performance of its functions under this Act. Powers and functions of the committee are laid down in Section 10, where one of the main function of the committee is to monitor and implement the National Plan. Section 11 says that “the National Plan shall be prepared by the National Executive Committee having regard to the National Policy and in consultation with the State Governments and expert bodies or organisations in the field of disaster management and shall be approved by the National Authority”. 

By notification on March 11, 2020 powers of Home Ministry (as Union Home Secretary is the chairman of NEC) under Section 10 of the Act have been delegated to the Ministry of Health and Family Welfare and pursuant to this power, Health Ministry has asked the National Pharmaceutical Pricing Authority (NPPA) to regulate the availability and pricing of surgical and protective masks, hand sanitizers and gloves and ensure that prices do not exceed the MRP, as over pricing can lead to unnecessary public exploitation. 

 

Flows in the existing legal framework: 

Act of 1897 or for that matter any act misses out to define “dangerous epidemic disease”. Professor Rakesh PS in his article published in the Indian Journal of Medical Ethics says that Act of 1897 has turned out to be more like a guidance and it doesn’t lay out any scientific steps to contain the spread of disease. He also writes that the Act is outdated and not rights-based lacking focus on human. The Act of 1897 is also silent on the ethical aspects or human rights principles that arise during the response to an epidemic. 

Law Ministry to preparing a bill to replace Act of 1897 with a new Public Health Act to include all aspects related to health, environment, food and road safety as prevention of many diseases require government to adopt multi-disciplinary approach and inter-departmental coordination. 

Among all the nations, Australia has enacted Human Biosecurity Control Act, 2015 with 11 chapters and 645 sections as compared to our 4 sections in Act of 1897. India must take cure from it and enact a detailed legislation to deal with endemic in a holistic and scientific manner. 

Conclusion: 

Though being a colonial era law, Epidemic Diseases Act, 1897 has come to rescue of governments in curbing past epidemics. But with changing time and growing population, role of science becomes vital in government preventive measure. Hence once the government gets control over ongoing COVID-19, it must bring in legislative changes to lay down concrete, integrated, comprehensive and actionable legal framework for the control of outbreaks in India. 

Author:  Parth Thummar 

1st year LL.B. (hons.) in IPR 

Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology, Kharagpur.

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