COVID-19 – I: Does the Epidemic Diseases Act of 1897 Call for an Amendment?

By Manan Daga

The Epidemic Diseases Act, 1897 (hereinafter referred to as the Act) is one hundred and twenty-three years old legislation. It was incorporated by the Britishers to fight the bubonic plague epidemic in 1896 in the Bombay Presidency.[1] This underlines a vital fact which cannot be ignored. The Act was a mechanism for handling epidemics when the technology was not present, medical advancement had not occurred, and India was not independent. This law was helpful in the aforesaid conditions. However, in this advanced and technological era, should we still have the same approach as we had a hundred years back?

The Act has a mere four sections which are supposed to help us through large-scale epidemics. Out of those four sections, one is about the title and extent of applicability of this Act.[2] Then comes the essential provision of this Act. It empowers the State Government to take temporary measures for preventing a threatening epidemic if the existing laws are insufficient to curtail it.[3] It also has the power to determine the method and manner of covering the expenses undertaken.[4] However, the state government has to inform the people of such measures through public notice.[5] Later, there was an addition to this section which empowered the Central Government to inspect any ships or vessels (as travelling was more prominent through ships then) and order for detention of any person on board.[6] It is empowered to do so only if it believes that a threatening epidemic has broken out, and ordinary laws are insufficient.[7] Another section prescribed the penal provisions, which said that any disobedience of the Act would lead to an offence punishable under Section 188 of the Indian Penal Code (IPC).[8] Lastly, there is a defence provision which exempts anyone doing an act in good faith under the Act.[9]

The Act is governing us in dangerous epidemics like the COVID-19 outbreak or the H1N1 outbreak. This essential Act has failed to address some of the crucial issues. Primarily, this Act merely talks about giving powers to the government when they are ‘satisfied’ that the ordinary laws are insufficient. This is a power which will be difficult to challenge because the threshold set is very subjective and vague. Secondly, the Act refers to Section 188 of the IPC for punishment which can give a maximum punishment of six months imprisonment or a thousand rupees.[10] Breaking of such laws can be fatal and might increase the spreading of the diseases as we have seen in the COVID-19 case. In such demanding circumstances, the maximum punishment is at such a low standard that it might not act as a deterrent. Thirdly, the Act has failed to address the issues of the availability and administration of vaccines and medicines.[11] Earlier, the issues of vaccination were not that prominent, but in this era, these issues are significant. During COVID-19 there was a shortage of medicines, masks, sanitizers, etc. If a provision existed for the availability of the same, then such shortages and hoarding of essential material could have been restricted.

A life-threatening epidemic like COVID-19 is an eye-opener for us. It tells us that in tough situations, time-worn laws cannot help us. The intention of developing a law like this is to help people and maintain peace and health. If the law is not able to achieve it efficiently, then there might be a need to amend it. Merely shifting the burden on to the government to take necessary steps or to address quarantine measures is not just the solution. Detailed law is needed which regulates the administration of vaccines and medicines. Further, it should ensure that essential materials like sanitizers and masks are not hoarded. Any other measure the government deems necessary should also be incorporated.

Additionally, the need for amendment of the Act is there despite the existence of other provisions like Section 269[12] and 270[13] of the Indian Penal Code. Primarily, these provisions which talk about spreading fatal diseases have a maximum punishment of six months and two years respectively.[14] Moreover, both of these offences are bailable.[15] This shows the level of stringency of these provisions, which should be more, considering the situation during the COVID-19 outbreak. Section 269[16] covers any unlawful and negligent act and Section 270[17] covers a malignant act. These provisions do not cover an act that was done legally, carefully and was a harmless or non-malignant act. During the COVID-19 outbreak, there were instances all over the world where the virus was transferred by doing legal and careful actions that were harmless, like handshaking, touching a common surface, etc. The Act works hand-in-hand with the IPC, but in case of a conflict between the both, the Act will override IPC since a special law overrides a general law. So, the Act needs to cover various aspects that are not covered in the general laws. Therefore, the need to amend the Act is present even when provisions from a general law exist.

The Act needs to form a proper Epidemic Body (hereinafter referred to as the Body) which constitutes medical professionals, legal professionals and government officials. This Body can combine all the various legislations and projects for such epidemics like the Act, Disaster Management Act of 2005, the Integrated Disease Surveillance Project, etc. After this, they can form a single legislation addressing all the issues and measures together. They can act as a governing body in future epidemics.

The Act is archaic, and such legislation cannot include all the measures and provisions we need today. The Act was enacted during the times when gyms, public transport and malls did not exist. These are some of the places which can spread at least the communicable diseases rapidly and act as a breeding ground for such diseases. Hence, any measures related to such places should also be introduced in the Act.

Further, even when the Act gives the power to the government to take necessary steps and they take all these measures, then also a problem exists. There is such a low threshold to invoke this power so it can be misused in the future. Even if today this power is not being abused, in future, there can be a possibility to misuse it. Therefore, the threshold for invoking this power can be increased by bringing in the Body in the picture too. Furthermore, if these said measures can be mandated by legislation, then the government can also focus all their resources on eradicating the disease. Otherwise, the government would have had to focus on thinking and implementing these measures along with the eradication.

Hence, having such measures and issues incorporated in the Act is beneficial in general. The Act needs to be amended as per the current circumstances, technology and need. Thus, public interest litigation was filed recently seeking to amend the Act.[18] This amendment is the need of the hour. There can be epidemics in the future, which might need the help of a well-drafted detailed legislation that conforms to the modern-day issues. Therefore, we need to be prepared for the future, and we might need to amend such archaic laws.

Many people were not even aware that such a law like this Act exists. Then, this Act is used for handling an issue that has caused a pandemic. So, the issue is, how will everyone know about an archaic law that is still governing us in such extraordinary times? Hence, if an amendment of such an act takes place, then it will make people aware of what the law contains and how it will protect and regulate us. Necessarily, this will prepare us for the future and will at least reduce the panic to some level. The satisfaction of being governed by a capable law that addresses the modern-day issues is like a safety net. So, the aforesaid amendments along with others that the government deem necessary will act as a safety net in case of such epidemics in future.

[1] Kiran Kumbhar, Epidemic Diseases Act, India’s 123-Year-Old Law to Help Fight the Pandemic, The Wire (March 21, 2020), https://thewire.in/health/epidemic-diseases-act-india-pandemic (Last visited on March 25, 2020).

[2] The Epidemic Diseases Act, § 1 (1897).

[3] The Epidemic Diseases Act, § 2 (1897).

[4] Id.

[5] Id.

[6] The Epidemic Diseases Act, § 2A (1897).

[7] Id.

[8] The Epidemic Diseases Act, § 3 (1897).

[9] The Epidemic Diseases Act, § 4 (1897).

[10] Indian Penal Code, § 188 (1860).

[11] Binod K Patro et al., Epidemic diseases act 1897, India: Whether sufficient to address the current challenges?, Journal of Mahatma Gandhi Institute of Medical Sciences Vol. 8 Issue 2, 109, 111 (2013).

[12] Indian Penal Code, § 269 (1860).

[13] Indian Penal Code, § 270 (1860).

[14] Indian Penal Code, § 269-270 (1860).

[15] Code of Criminal Procedure, Schedule 1 (1973).

[16] Supra 12.

[17] Supra 13.

[18] Rintu Mariam Biju, Coronavirus: PIL filed before Karnataka HC to amend Epidemic Diseases Act, 1897, constitute Epidemic Disease Control Board, Bar and Bench, March 21, 2020 at 12:23 PM, https://www.barandbench.com/news/litigation/coronavirus-pil-filed-before-karnataka-hc-to-amend-epidemic-diseases-act-1897-constitute-epidemic-disease-control-board (Last visited on March 25, 2020).

[The author is a second-year student at West Bengal National University of Juridical Sciences, Kolkata.]