The present article is written by Syeda Khizra Rizvi, 5th year BBA LLB student from Indian Institute of legal studies, siliguri, west Bengal during her internship at LeDroit India. Discussing about Epidemic Act and important sections which are applicable in current scenario of Covid 19.
Across the world, multiple methods and steps like contact tracing, social-isolation and quarantine are being used to mitigate the Coronavirus (COVID-19) pandemic. These methods which are used by the State invariably impinge on the autonomy, liberty and dignity of individuals. We allow these intrusions, as legitimised by laws, for the State to be able to act in the interest of the population at large or in the interest of the citizens.
In past days, there have been calls to update this colonial law as it does not provide guidelines to the states to act to prevent or else mitigate epidemics. But at the same time, experts with experience of working within the government seem to believe that the law is appropriate and does not require any changes.
This article studied the role of the Act within the legal framework which is structured under Epidemic Act complying COVID-19 response. The extent of use of State power through regulations and made provision is examined to understand whether the COVID-19 regulations and legal framework should be updated.
THE ELEMENTS OF THE COVID-19 RESPONSE
Under the Constitution of India, public health and sanitation are the responsibilities of the state and local governments while the union government look after the management of port quarantine, inter-state migration and quarantine. Only about eight states and union territories in India have legislation for public health.
For example, The Tamil Nadu Public Health Act, 1939 sets up the public health boards and provides for public health staff who are responsible for supply of water, drainage, sanitary conveniences and so on. At the same time the Union government is using various measures to prepare and respond to the COVID-19 pandemic, these are:
- In the month of January, it invoked its powers under the Disaster Management Act, 2005 to enhance the preparedness and containment of COVID-19 at hospitals. Notifying the pandemic as similar to a disaster enabled the states to use funds from the State Disaster Response Fund on COVID-19.
- In the month of March, the Ministry of Health advised states to invoke the provisions of Section 2 provided under the Epidemic Diseases Act, 1897.
- As a signatory to the International Health Regulations, 2005 i.e. IHR, India needs to establish an appropriate public health response to international level spread of diseases. As this is done through the Integrated Disease Surveillance Program (IDSP).
THE ROLE OF THE EPIDEMIC DISEASES ACT, 1897
The Epidemic Diseases Act, 1897 was designed to put government mechanism into action once there is a considerable threat of a dangerous epidemic disease and not only as a code for establishing general public health systems.
The provisions of the law seem to be innocuous as it consists of four sections which provide wide powers to the government. The state government is empowered to regulate dangerous epidemic disease, a term not defined in the law. The government is empowered to regulate ships or vessels leaving or arriving in the country. Disobedience to the regulations is punishable offence while providing for immunity to public officers for performing functions under the law.
There is much to learn from the way the law was enacted and used by the government historically. SL Polu, while describing the background of infectious diseases in India, noted that in formulating the Act and medical strategy to fight epidemics, the government primarily desired to ensure compliance with the said international sanitary conventions, protect trade, and assuage any fears abroad of the potential spread of plague or cholera outside India. (SL Polu (2012))
David Arnold described the law as “one of the most draconian pieces of sanitary legislation ever adopted in colonial India.” (David Arnold (2000)) The measures which invited criticism comprises compulsory detention of plague suspects, destruction of houses and infected property as well physical examination of persons and banning of fairs & pilgrimages.
The said invited distrust of the Indian communities and resistance towards action taken by the State. As a result, Arnold notes that the colonial government modified its strategy in favor of moderate measures such as creating awareness about sanitation, advocating voluntary measures, and setting up institutions for medical research.
THE POWER OF STATES DURING A PANDEMIC
Most Indian states including Haryana, Delhi, Maharashtra, Karnataka and Uttar Pradesh have invoked their powers under the law. This ristrict them to undertake Non-Pharmaceutical Interventions i.e. NPIs to mitigate the epidemic widespread in absence of medicines to treat the disease as these NPIs so far include struck down of educational institutions, malls, schools, gyms, advisories on social distancing as well as regulations and Advisiories regarding home isolation and quarantine.
However, some of the other regulatory provisions provide extensive powers to government officers. For example, state regulations such as the Bihar Epidemic Diseases COVID-19 Regulations 2020, Uttar Pradesh Epidemic Diseases COVID-19 Regulations 2020, Delhi Epidemic Diseases COVID-19 Regulations, 2020 authorise officers of the government to admit, quarantine and isolate a person in certain situations. This can be also done forcefully as the officers are given powers of surveillance of individuals and private premises. Lockdowns can be issued by the District Magistrate the state or said district. Further, free speech is restrained as an individual cannot publish information regarding COVID-19 without prior permission of the government to prevent the spread of fake news.
While all these powers are to be performed in the noble function of interest of the public, the results of excessive action can be somewhat disastrous. Reports also suggest that the State power has been exercised for arresting persons who are spreading fake news on the disease, arresting persons gathering in large numbers despite directives of the government, arresting persons not following home quarantine procedure and sharing publicly the list of suspected patients. Using excessive power without transparency has historically has always shown a negative impact on the community participation. Being forced into unhygienic quarantine centres and issues in accessing essential services is deepening the distrust between people and the State. Two persons have already reportedly died due to suicide because of fear of the disease and many suspected patients have absconded public hospital facilities.
The current regulations made on COVID-19 allow states to practice the coercive actions against public comparable to those undertaken by the colonial government. These actions have already put restriction on movement, free speech, religion, profession and privacy although the restrictions are legal in as much as they are necessary and proportionate to a legitimate aim.
REGULATIONS VIS-A-VIS RIGHT TO PRIVACY
The regulations made on COVID-19 impact many aspects of fundamental rights of individuals. Herein, I examine the law with respect to the right of privacy a person.
The right to privacy, which includes personal autonomy, dignity and liberty, is a fundamental right. However, the right is subject to reasonable restrictions such as in furtherance in the public interest. In the case of KS Puttaswamy judgment, the court laid down the following tests for limiting the discretion of the State while impinging on the fundamental right to privacy:
- The said action must be sanctioned by law.
- The said proposed action must be necessary for a legitimate aim.
- The extent of such interference must be proportionate to the need for such interference or need of the hour.
- There must be procedural guarantees against assault of such interference
The test of legitimate aim is satisfied by the Epidemic Diseases Act, 1897 as its function is to prevent the spread of a dangerous epidemic disease (corona virus) . It is impossible to define specific proportionate regulations for a novel infectious disease in a term of parent law. Therefore, the law provides the power for delegated legislation to the states. However, the parent law does not provide for procedural guarantees against abuse or assault of State power of interference with privacy of individuals i.e. the law does not define or provide guidelines on the definition of a dangerous epidemic disease. Due to these actions, the citizens are at risk of both inaction and excessive coercion by the State. In the past decade, citizens have been forced to file petition to courts for directing the State to take action, or to defend themselves against excessive action of the State.
The State can misuse the provisions made under law for profiling, mass quarantine and targeting of individuals. Even then, there is legal immunity given to some extent to public servants who function under it. Therefore, the law focuses on the public interest while enactment with any procedural guarantees against abuse of its powers. Therefore, the said Epidemic Diseases Act does not passed the tests of reasonable restrictions on the fundamental right of privacy of individuals.
The Indian response to COVID-19 pandemic has been fragmented. Multiple rules, laws, programmes, regulatory bodies along with national and state level advisories also participate in the response. The Epidemic Diseases Act has been a subject of debate as calls for government action. Instead of building a public health framework, the limited purpose of the Epidemic Diseases Act is for the states to take special step and measures for dangerous epidemic diseases. Within this limited framework, the law gives wide powers to the government to undertake coercive actions against individuals or citizen.
The states in the country have notified COVID-19 regulations under this law. There are unmitigated powers of surveillance and use of force given to state authorities under this. While such powers are provided to be used under the legitimate aim of protecting health of the population, neither the law nor the regulations under it describe procedural guarantees against or abuse of state coercion.
In order to mandate using such procedure ,the best practices in the future, a comprehensive legal framework for epidemic preparedness and response is required instead of the current fragmented response framework through missions and programs.
This is required to increase the accountability of the government to its citizens. It is imperative that such a law is passed by the union government/central government while providing states power to utilise their public health framework.