AUTHOR:

Ms. DHANASHREE BALASAHEB KOLTE,
Student,
Maharashtra National Law University, Mumbai

CO-AUTHOR:

ABSTRACT

COVID-19 has created havoc because of its catastrophic outcomes affecting the countries  throughout the world. The magnitude and gravity of the situation have compelled us to take stringent measures to battle the same.  If we speculate the Indian scenario we can make out that we are prone to the spread of disease due to reasons like the high density of population, inadequate health care measures, proximity of the houses, slum dwellings, ill-equipped legal measures, lack of hygiene and many other facts. Moreover, India spends only 1.28 percent of total GDP [1]on public health and the allopathic doctor population ratio is 1:11082.[2] The conditions may jeopardize the public health of its citizens. The best strategy to aid and assist the healthcare system is the application of legal rules and regulations. The Epidemic Diseases Act, 1897 enacted during the outbreak of Bubonic plague in Bombay has authorized the Central and state governments to take special measures to prevent the spread of infectious diseases. Unfortunately, the Act is merely regulatory and has conferred no rights to the citizens. There are many limitations of this Act, for which we need to seek a legal redress through amendments. Legal frameworks and stringent actions are necessary for building up a wholesome statute to wage a war against global health disease like COVID-19. The article contends to portray both the significance and limitations of the Act. It critically analyses the Epidemic Disease Act, 1897 urging the need for a comprehensive and detailed health law under a single integrated statute to deal with epidemics and pandemics. The research will provide a general view about the recent ordinance promulgated in order to amend the Epidemic Diseases Act. It will also point out the legal loopholes in the Epidemic Diseases (Amendment) Ordinance, 2020.

CONTENT

History speaks for itself, making it evident that India has experienced a series of endemics and epidemics in the past which have caused an anomalous number of casualties. Out of which, COVID-19 has turned everything into a complete fiasco. Article 21[3] of the Indian constitution has guaranteed the Right to live with dignity implying that health laws should be a priority. The government is obligated to provide health care facilities. [4]Statistically India ranks 145 out of 195 countries in the world, according to the global health care quality and access.[5] The pandemic is an eye opener for India as it depicts the urgency to amend the health laws. In the sphere of communicable disease outbreak and its prevention, we still adhere to an archaic statute like Epidemic Diseases Act, 1897.[6] The shortcomings of the law and mass disobedience of the existing laws has led to a steep rise in the number of affected cases. India has a limited weapon in the form of this law, promulgated during the colonial era which soon needs rectification of the shortcomings and widening of its scope. Proper health care laws ensure preparedness during such crises. An integrated and detailed legislation would ensure proper implementation of quarantine laws, financial allocation, distribution of resources and vaccinations, enlist the measures to tackle disobedience, issue directions to the government and other health associates during such a health crisis. Pithily, it will ensure that the international health regulations are met with effective pandemic planning.

           The Epidemic Diseases Act,1897 is an outdated statute enacted during the Bubonic plague outbreak in Bombay during the colonial era. The powers conferred to the government, of taking special measures were ‘extraordinary’ but deemed ‘necessary’[7]. It is one of the shortest Act, comprising of only four sections. If the limitations are overlooked, the act has played a vital role up to a certain extent in governing the quarantine laws in this grave and critical situation. Section 2[8] and 2A[9] of the Act confer special powers to the state governments and central government respectively to take measures to prevent the spread of any dangerous disease if they deem necessary. It is a regulatory act which is to be enforced if the situation is extraordinary and critical. When other laws are insufficient to curb the dangerous disease, the government assumes the sole authority to ameliorate the situation. To prevent the proliferation in the novel coronavirus outbreak, these laws have given the government an authority to prevent the spread. Its significance is evident through the measures taken by the government to combat the spread through actions like stringent quarantine, shutting borders, screening the air passengers, postponing the sport matches, adhering to the WHO guidelines, deploying railway stations and coaches as ‘COVID care centers’ and isolation wards, allocation of funds and most importantly imposing Section 144 of the Criminal Procedure Code, 1973[10]. Besides this, Section 4[11] of the Act safeguards the public authorities working in good faith against suits. Violation of the laws under the Epidemic Diseases Act, 1897 will attract a penalty in accordance with Section 188 of IPC [12] deterring further disobedience. In short, the act is effective during small scale emergencies i.e. endemics but in the case of a pandemic like COVID-19 it needs severe amendments.

           The act was effective during the colonial era empowering the authorities to detain the plague affected patients, test the suspected cases, regulate the public places, etc.[13] However, the recent COVID-19 spread has initiated that India needs an extensive, thorough, consolidated and effective enforcement of public health laws. The Epidemic Diseases Act, 1897 requires amendment taking into consideration the changes in the socio-political circumstances, urbanization, density of population, change from an agrarian society to an industrial one, globalization, environmental changes, increase in the number of air travelers, etc. The Act is quite obsolete in modern-day times therefore, it needs to be rectified so that there is equitable access to health care facilities during such a widespread outbreak. The term ‘dangerous disease’ stated in the act is ambiguous. There is no clear mention if danger in this context refers to the magnitude of the disease, risk factor involved, mortality rate or the time period required for its cure. The nature of the diseases is not elucidated making it unclear. The prime emphasis of this regulation is only enforcing the quarantine laws and screening in public places thus neglecting other appropriate measures like distribution of vaccination and medications, allocation of resources, facilitating the suspected cases, rights of the affected patients, management of hospitals and isolation wards, etc. In short, the Act fails in practical implementation because of its non-functional nature. The Act lacks provisions for detection since its inception. Data collecting measures and statistical study provisions are not inculcated. Lack of scientific inculcation in dodging further spread of the disease has exacerbated the situation.

            The act is quite normative with no directions to the government, health care authorities, public officials, management staff, etc. defying the purpose of combating an epidemic. It grants government absolute authority, but it is silent on the rights. The Act is silent on the ethical and human rights of the suspected persons and the affected patients. Moreover, the Act is limited to inspection of ships, vessels, and ports. Inspection and screening in other places like airports, aircrafts, railway stations, bus depots, etc. do not fall in the ambit of the Act. Nothing is prescribed about the government obligations in order to contain the global virus. During such circumstances, there ought to be a division of powers and duties at all three levels- center, state, and local level. There are no divisions of powers and obligations to effectuate systematic management during such a worldwide crisis. Currently, various statutes like IPC [14], CrPC [15], Disaster Management Act[16], etc. have come into focus by interpreting certain sections which help in management of the situation. However, this is not a sustainable solution. We require specific and detailed laws encapsulated in a unified legislation for convenience. The loopholes hint towards the Act being incapable of handling large scale emergencies. The practical aspect is missing in the Epidemic Diseases Act, 1897.  The prevailing lawlessness during such a hyped-up situation is due to the fact that Public health is enlisted within the ambit of state list rather than the central list. This prevents the union to adopt, enact and implement any health care measures effectively with ease. We require a robust legal framework ensuring preparedness to fight against the pandemic.

            Despite imposing stringent actions through the available legal measures, people are recklessly breaking the imposed regulations. Mobility, flaws in the existing laws and non-adherence to the social distancing measures have led to a steep rise in the number of cases all around India. The recent ordinance[17] has ameliorated the situation, setting aside some loopholes of the Epidemic Diseases Act, 1897. The Act has safeguarded the health workers and public officials working in good faith against the epidemic, but is silent on the other aspects like safety of the personnel while exercising in good faith. The health care service personnel are vulnerable not only because these people are in close contact with the carriers of the virus but also due to some reported acts of harassment, verbal aggression, violence, etc.[18] Despite their daunting efforts for a noble cause, the miscreants have been targeting and attacking them while working in good faith. The crux of the matter is that the existing laws have inadequate punitive measures against the miscreants. For instance, according to the provisions of Section 51 of the Disaster Management Act, 2005, the maximum punishment in case of obstruction or refusal to comply with the directions extends only up to 1 year (2 years if it results in loss of lives or imminent danger)[19]. The presidential decree promulgated on 22nd April, 2020 has instilled confidence in the health service personnel who are effortlessly serving mankind in this hour of need. The primary objective of the ordinance is to safeguard the life and property of the health personnel who would have otherwise had to undergo a nationwide strike on account of legal insufficiencies of the existing punitive laws[20].

           The Epidemic Diseases (Amendment) Ordinance, 2020 has widened the scope of penalties rectifying certain flaws. The ordinance has defined violence, health personnel and property making it more specific unlike the principle Act which is based on interpretations[21]. It seeks to widen the scope of Section 2A of the original Act. Initially, the Central authority could inspect only the ports, ships, and the vessels. However, the ordinance inculcates aerodromes, aircrafts, buses, and trains taking into consideration the widespread mobility of the people in modern times. There were several cases reported on account of violence against the health care personnel. For instance, the residents in Ujjain, MP threatened the doctors and medical staff with verbal aggression when they came to conduct a medical survey in the locality[22]. The ordinance seeks to redress such aggressive attacks safeguarding the life and property of the health care personnel through insertion of section 2B[23].  The scope of penalty of the offences is also widened as contrary to the principal Act. It fosters punishment of both the individual as well as the abettors who commit an act of violence against the health care personnel. The ordinance is pari passu with Section 333 of Indian Penal Code[24] which defines grievous hurt.

            The offences are made stringent making them cognizable and non-bailable. The ordinance states that a police officer not below the rank of an inspector will investigate the proceedings of the offences enlisted in Section 2 and Section 3 of the ordinance. This will reduce the chances of defect and quash while vitiating the criminal proceedings. The investigation will be time efficient because the investigation is to be conducted within a short period of only 30 days after the filing of the FIR. The overall proceedings will be speedy with a time period of one year unless the Judge deems it necessary an extension on reasonable grounds. The utmost extension will further be of 6 months with a prerequisite that it should be recorded in writing[25]. The ordinance aims at making the entire investigation and trial rendering speedy justice to the health workers working in good faith. ‘Culpable Mental state’ is an essential element and the burden of proof lies on the accused[26]. The ordinance aims at adoption of stringent measures in case of disobedience. Compensation to the victim as determined by the court for redressal and deterrence of crime is also a part of this section[27]. Lastly, in case of property damage, the miscreant has to pay double the amount of the market value. This serves two major purposes; bringing deterrence towards this sort of criminal activity along with redressing the economic, physical, or wrongful loss suffered by the victim. In short, the ordinance has mitigated the shortcomings of the principle Act by punishing the malefactors, compensating the victims, protecting the protectors, and hastening the trials and investigations.

            The prevailing anarchy is prevented to a point with the promulgation of this ordinance. However, the human rights of the accused are violated according to the Indian Jurisprudence. The Indian judicial proceedings are vehemently based on the central theme that the accused is ‘presumed to be innocent until proven guilty.’ Section 3 (c) Epidemic Diseases (Amendment) Ordinance, 2020[28] presumes the accused to be guilty unless the contrary is proven. That is, the burden of proof lies on the accused in this case. This violates the very principle of human rights which might lead to the miscarriage of justice. The justice itself will be a preponderance of probability if an individual is held guilty on the grounds of mere suspicion and not on the basis of substantial proof. Further, this might sabotage Blackstone’s formulation[29] with the idea: “It is better that ten guilty persons escape than one innocent suffer.” The apex court in its landmark[30] judgement of the case Noor Aga Khan vs. State of Punjab[31] ruled out that the presumption of innocence is a background for the conception of justice, confidence, security and integrity though it is not explicitly mentioned in the Constitution of India. The verdict of the court recognized Article 14 (2) of the International covenant on civil rights and political rights[32] of which India is a signatory. The provision of the ordinance might lead to wrongful convictions not only severely affecting the status quo of the accused but also impairing the concept of democracy, justice, equality, liberty, and dignity.

            Further, Section 3D[33] of the ordinance presumes the culpable mental state of the accused and the onus of proving his innocence lies on the accused. Every person is entitled to the ‘Right to free and fair trial’ as embodied in the Constitution of India through article 21[34]. But the question which arises here is, how can ‘Right to free and fair trial’ be guaranteed if the accused is presumed to be guilty and has to prove his innocence despite the State having massive resources to prove the facts asserted? The State has taken draconian measures to protect the rights of the health care workers but at the same time it has curtailed the human rights of the accused. Generally, the onus of proving the default lies on the prosecution so how could the onus shift on the accused for negating the guilt which is not established yet. Section 101 of the Indian Evidence Act[35] implies that the onus of proving the fact lies on the one who asserts the particular act. The provision of the ordinance undermines the basic legal principle ‘ei incumbit probatio qui dicit, non qui negat’[36] which is ardently accepted by the Supreme Court. Even the Bombay High Court held Section 9 (b) of the Maharashtra Animal Preservation Act[37] as unconstitutional because if the burden of proof lies on the accused, it would contradict the fairness and reasonableness of justice. The accused in this case lacks resources to prove his innocence violating his Right to live with dignity.[38]

            CONCLUSION

The Epidemic Diseases Act, 1897 is a colonial baggage taking no notice of the modern-day realities. The Epidemic Diseases (Amendment) Ordinance, 2020 has eased the worsened circumstances up to a point but India needs to make some dire amendments with some apt and humane provisions. Through the administrative measures, India has availed success in mitigating the severity of the outbreak up to some extent. However, the possibility of community spread in near future still remains at peak. Currently, there are many reported cases of lawlessness like hiding travel histories, fleeing away from the isolation wards, not adhering to the government guidelines, social distancing, etc. menacing the health of fellow countrymen. Had there been existing legal provisions for epidemic prevention and management, these cases would have been drastically reduced. For instance, peering at the condition of the migrant workers, one can perceive the limitations of the legal provisions.[39] They are denied basic necessities of life like food and shelter. Many are walking on foot to reach their destination because inter-state coordination is missing. The recent case where 16 workers were mowed under the goods train in Aurangabad depicts the lack of legal measures[40].

The nub of the issue lies on the fact that we do not have laws to mandate the quarantine laws under a single authority. A quasi federal democratic state with the second largest population needs strict monitoring of legal adherence by a single authority. Separate statutory as well as non-statutory authorities have issued different lockdown orders. For instance, the civil aviation issued orders for cancellation of domestic flights on 23rd March, 2020 under 8B of the aircraft Act, 1934.[41] The shipping directorate and railway board issued separate orders to battle the outbreak. Different states have imposed quarantine laws for different time periods. We need comprehensive and detailed legal provisions to battle the global virus. Therefore, the current priority of the legal sphere should be the amendment of laws corresponding with the present issues. This global pandemic has given the answer to why legal measures are necessary to combat such deadly viruses. Though we have a series of minor rules under different statutes, we need a synchronization of all of them under a single health law.

[1] Sanika Diwanji, “ Value of public health expenditure in India FY 2014-2019”, Statista, 9th April, 2020, https://www.statista.com/statistics/684924/india-public-health-expenditure/ , Accessed on: 8th  May, 2020

[2] “Doctor-population ratio: In India, one allopathic doctor for 11820 people, official data shows; Bihar, UP worst hit”. Financial Express. https://www.financialexpress.com/india-news/doctor-population-ratio-in-india-one-allopathic-doctor-for-11082-people-official-data-shows-bihar-up-worst-hit/1213243/ Accessed on: 8th May, 2020

[3]  Article 21 of the Indian constitution states, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

[4] State of Punjab & Ors vs Mohinder Singh Chawla, AIR 1955 SC 62.

[5] Health access quality report of 2016. Accessed at : http://www.healthdata.org/sites/default/files/files/county_profiles/HAQ/2018/India_HAQ_GBD2016.pdf

 

 

[6] Epidemics Disease Act, 1897. Accessed at: http://www.bareactslive.com/ACA/ACT1511.HTM

[7] While introducing the bill, John Woodburn (one of the council member) quoted this statement.

[8] Section 2 of the Epidemic Disease Act states:

Power to take special measures and prescribe regulations as to dangerous epidemic

disease. —When at any time 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, the [State Government], if [it] thinks that the ordinary provisions of the law for the time being in force are insufficient for the purpose, may take, or require or empower any person to take, such me assures and, by public notice, prescribe such temporary regulations to be observed by the public or by any person or class of persons as [it] shall deem necessary to prevent the outbreak of such disease or the spread thereof, and may determine in what manner and by whom any expenses incurred (including compensation if any) shall be defrayed.

[9] Section 2A of the epidemic act states:

Powers of Central Government.—When the Central Government is satisfied that India or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease and that the ordinary provisions of the law for the time being in force are insufficient to prevent the outbreak of such disease or the spread thereof, the Central Government may take measures and prescribe regulations for the inspection of any ship or vessel leaving or arriving at any port in [the territories to which this Act extends] and for such detention thereof, or of any person intending to sail therein, or arriving thereby, as may be necessary.

[10] Section 144 of criminal procedure code. Accessed  at: https://indiankanoon.org/doc/930621/ 

[11] Section 4 of the Epidemic Disease Act states:

Protection to persons acting under Act –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.

 

[12] Section 188 of IPC. Accessed at; https://indiankanoon.org/doc/1432790/

[13] Rai, Saurav Kumar, ‘How the Epidemic Diseases Act of 1897 Came to be’. The Wire, 2nd April, 2020. Accessed at: https://thewire.in/history/colonialism-epidemic-diseases-act

[14] Indian Penal Code, 1860 Accessed at: https://www.advocatekhoj.com/library/bareacts/indianpenalcode/index.php?Title=Indian%20Penal%20Code,%201860

[15] Code of Criminal Procedure Act, 1973. Accessed at:

https://www.advocatekhoj.com/library/bareacts/codeofcriminalprocedure/index.php?Title=Code%20of%20Criminal%20Procedure%20Act,%201973

[16] Disaster Management Act, 2005. Accessed at:

https://www.advocatekhoj.com/library/bareacts/disastermanagement/index.php?Title=Disaster%20Management%20Act,%202005

 

[17] THE EPIDEMIC DISEASES (AMENDMENT) ORDINANCE, 2020. Accessed at:

https://www.prsindia.org/billtrack/epidemic-diseases-amendment-ordinance-2020

[18] Venkatesan, V. “  Centre brings ordinance with draconian measures after attacks on health care personnel” Frontline, April 24, 2020, https://frontline.thehindu.com/dispatches/article31421609.ece  

[19] Section 51 of Chapter X of the Disaster Management Act, 2005 states, Punishment for obstruction, etc.-Whoever, without reasonable cause-

  1. obstructs any officer or employee of the Central Government or the State Government, or a person authorized by the National Authority or State Authority or District Authority in the discharge of his functions under this Act; or b. refuses to comply with any direction given by or on behalf of the Central Government or the State Government or the National Executive Committee or the State Executive Committee or the District Authority under this Act, shall on conviction be punishable with imprisonment for a term which may extend to one year or with fine, or with both, and if such obstruction or refusal to comply with directions results in loss of lives or imminent danger thereof, shall on conviction be punishable with imprisonment for a term which may extend to two years

[20] Tapesh Kumar Singh. A Critique on The Epidemic Diseases (Amendment) Ordinance, 2020. Live law. 27th April, 2020. Accessed at:

https://www.livelaw.in/columns/a-critique-on-the-epidemic-diseases-amendment-ordinance-2020-155819

 

 

[21] Section 3 of the Epidemic Disease (amendment) ordinance, 2020

[22] Singh, Ritu. Covid-19: Healthcare Workers Verbally Abused & Threatened with Violence in MP’s Ujjain. 7th April, 2020. Accessed at: Covid-19: Healthcare Workers Verbally Abused & Threatened with Violence in MP’s Ujjain.

[23] The ordinance states, Insertion of 2B, “No person shall indulge in any act of violence against a health care service personnel or cause any damage or loss to any property during an epidemic.”

[24] Section 333 of the Indian Penal Code, 1897 states,

Voluntarily causing grievous hurt to deter public servant from his duty- Whoever voluntarily causes grievous hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

[25] Section 7 of the Epidemics Disease (amendment) ordinance, 2020 inserts section 3A- Cognizance, investigation, and trial of offences.

[26] Section 7 of the Epidemics Disease (amendment) ordinance, 2020 inserts section 3B in the principal act named as- presumption of culpable mental state.

[27] Section 7 of the Epidemics Disease (amendment) ordinance, 2020 inserts section 3E in the principal act named as- Compensation for the acts of violence.

[28] Section 3(c) states that When a person is prosecuted for committing an offence punishable under the subsection of section 3, the court shall presume that such person has committed such offense ,until the contrary is proven .

[29] Dekay, Michael L. “The Difference between Blackstone-Like Error Ratios and Probabilistic Standards of Proof.” Law & Social Inquiry, vol. 21, no. 1, 1996, pp. 95–132.

[30] Rattiaram v. State of Madhya Pradesh, AIR 2012 SC 1485.

[31] Noor Aga Khan vs. State of Punjab (2008) 16 SCC 417.

[32] Article 14 (2) states,’ Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. ‘ Accessed at: https://h2o.law.harvard.edu/collages/17542

[33] Section 3(D) states that, When a person is prosecuted for committing an offence under the subsection of section 3, the court that presume the existence of such mental state, but it shall be a defense for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

[34] Article 21 of the  Indian constitution states, Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.

[35] Section 101 of the Indian evidence Act states’

Burden of proof. —Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Accessed at: https://indiankanoon.org/doc/147127/

[36]  The burden of the proof lies upon him who affirms not he who denies. Accessed from: Law Dictionary & Black’s Law Dictionary, 2nd Ed. 

[37] 9(b) of the Maharashtra Animal preservation Act of 1976. Burden of proof the accused.

[38] Nirmalya Chaudhari, ‘Dilution of the presumption of innocence Principle in India’, (OxHRH Blog, February 2020).

[39] Rautray Samanwaya. In Supreme Court, government opposes return of migrants. Economic times, 28th April, 2020. 

[40] Banerjee, Shoumojit and Mahale, Ajeet. 16 migrant workers run over by goods train near Aurangabad in Maharashtra. The Hindu. 8th May,2020.

[41] 8(b) of the Aircraft Act, 1934- Emergency powers for protecting the Public health. Accessed at: https://indiankanoon.org/doc/356807/

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