Understanding the Relevance of the Epidemic Diseases Act, 1897 in Contemporary Times
Author: Amit Kumar
LLM (2nd Year), Department of Law, Kurukshetra University.
Recently, many states in India have invoked various provisions of the Epidemic Diseases Act of 1897 in order to control and prevent the spread of communicable diseases. In this context, this 123-year-old Act is reviewed with reference to its relevance in the current times. A study of the power of the central and State government and their rights is also done. Penalty for the violation and in reference to the Indian Penal Code is also discussed. Immunities granted under the act are examined. Various cases have also been referred to see the interpretation and application of the said act. However, it is felt that the Act has major limitations in the present scenario as it is outdated, merely regulatory and not rights-based. The Act seems to be obsolete in current times. There is a need for a better-codified law which can help in feeling the vacuum that exists. A new is needed which provides for better-planned mechanisms to deal with the dangerous epidemic.
In contemporary times, we see a number of cases reporting the outbreak of epidemics. Therefore, legal frameworks in a democracy are necessary to tackle these emergencies. These legal provisions help to delineate the scope of the government’s role in response to these tough situations. In recent times, we have seen the invoking of the Epidemic Diseases Act, 1897. The spread of the COVID-19 virus recently has further led to the use of this century-old legislation. In this context, it is important to critically evaluate the Epidemic Diseases Act of 1897, its relevance in contemporary times and whether it has kept up with the recent global developments in disease control.
This paper attempts to describe the Act, its historical background, its key provisions and the current status of the Act. Further, it aims to identify its limitations and lacunae. Finally, it sets out to examine key legislations and recommendations.
Historical Background of the Act
This Act was introduced with the purpose of better prevention of the spread of dangerous epidemic diseases. In the background, this act was at first enacted to tackle the chaos created by the bubonic plague epidemic that broke out in the then Presidency town of Bombay under Colonial India. The dreadful plague took almost 12 million lives and also caused millions to flee the city leading to a drastic fall in the population. The then Governor-General of colonial India, Victor Bruce, conferred special powers upon the local authorities to implement the measures necessary for the control of epidemics.
The first case of the plague was reported in 1896. In the same year, selected British officials were tasked with the containment of the bubonic plague that had erupted in the Bombay Presidency, and soon after raged across the colony. These officials observed with alarm a dangerous influx of residents fleeing Poona. In his Report on the Outbreak of Bubonic Plague in Bombay, 1897, P.C.H. Snow,[i]the Municipal Commissioner of Bombay, feared that among the fleeing were the cart-drivers, sweepers, cleaners and sanitary workers on whom the city’s health was on. The chairman of the Bombay Plague Committee[ii], Brigadier General W.F. Gatacre, joined Snow in making a case for a strong law that cracked down on people who fled municipal limits. The outcome was the making of the Epidemic Diseases Act, 1897.
Scheme of the Act
The act contains only four sections which can be invoked by the Central or the State Government in the situation where the existing ordinary laws and executive power seems to be insufficient to control the spread of the epidemic.
A. Power of State Government
Section 2 of the Act confers powers on the State Government to take special measures and prescribe regulations as to dangerous epidemic disease.[iii] It states that if at any time the State Government is satisfied that state or any part of the State is visited by, or threatened with, an outbreak of any dangerous epidemic disease, and the State Government if it thinks that the ordinary provisions of the law are insufficient, may take, or require or empower any person to take, such measures 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. Clause (2)(b) of the said section allows the inspection of suspected persons with disease traveling by railway or other means of transport, and their segregation, in hospital, temporary accommodation or otherwise by the inspecting officer.
The section has been invoked many times since its inception. The act was used in 2015 by the Chandigarh administration to deal with dengue and malaria. In 2009 it was invoked in Pune city of Maharashtra to combat swine flu. In 2018, the Act was enforced as cholera began to spread in the western state of Gujarat. Since the starting of the month of March 2020, the act is being enforced across India in order to limit the spread of coronavirus disease 2019 e.g. The Delhi Epidemic Diseases, COVID-19 Regulations, 2020,[iv]The Maharashtra Epidemic Diseases COVID-19 Regulations, 2020,[v]Punjab Epidemic Diseases, COVID-19 Regulations, 2020,[vi] The Himachal Pradesh Epidemic Disease (COVID-19) Regulations, 2020[vii]have been promulgated under the Act.
B. Power of Central Government
The said Act was amended in the year 1920 and inserted section 2A[viii] which provides for the power of the Central Government. Under this section, when the Central Government is satisfied that either the whole territory or any part thereof of the country is visited by, or threatened with, an outbreak of any dangerous epidemic disease and 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, vessel as a means of transportations leaving or arriving at any place in the country and for also any detention needed of any person as may be necessary.
C. Penalty under The Act
Section 3 provides for penalty for the persons disobeying any regulation or order made under this Act.[ix] It provides that any person disobeying any regulation made under this act shall be deemed to have committed an offence under section 188 of Indian Penal Code, 1860 which attracts a punishment of six months imprisonment or fine amounting to 1,000 rupees or both. Explanation to section 188 I.P.C. provides that it is not necessary that the offender intends to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he has knowledge of the order which he disobeys, and that his disobedience produces, or is likely to produce harm.[x] Therefore, for securing prosecution under this act, “mens rea” need not be proved and “act” alone is sufficient.
D. Immunities under the Act
Section 4 provides protection to persons acting under Act.[xi] It provides immunity from any suit or other legal proceeding to any person who has done anything intended in good faith under this Act. These types of provisions are common under various Act which protects the public servant and helps in the fulfillment of the purpose of the Act.
Definition of “dangerous epidemic disease”
The Act does not contain either a definition or an Interpretation Clause which has resulted in no definition or description of the term “dangerous epidemic disease”. There is no clear definition as to whether an epidemic is “dangerous” on the basis of the magnitude of the problem, the severity of the problem, the demography of the population affected or it’s potential to spread. It is important to know what the meaning of the term “dangerous epidemic disease” is and what is the criteria upon which the definition is based if we are to prevent misuse of the Act and also for its transparency.
Judiciary and the Act
In Ram Laul Mistry v. R.T. Greer,[xii] Calcutta High Court held that the words “done or intended to be done” in sec 4 of the Epidemic Disease Act do not include omissions and Magistrate who omits to pay adequate compensation for property demolished under the provisions of the Act is personally liable, even though he is acting in his administrative capacity as Chairman of the Calcutta Corporation
In Queen Empress v South & Others,[xiii] certain persons were charged with having disobeyed an order promulgated under the Epidemic Diseases Act and were acquitted on the ground that for prosecution under section 196 of code of criminal procedure, the previous sanction of the public servant who promulgated the order is required. However, Madras High Court held that the order of acquittal was wrong as in as much as the order was in question, it was promulgated by the Government and not by any public servant, and thus, no sanction was required
In Re Nagappa Thevan and Another,[xiv] Madras High Court held that delegation of power to local government is void and in the case before the court a delegation under rule 104 by the collector to a Divisional Officer of the power to call upon people to evacuate houses is illegal and an omission to comply with the order of such officer acting under such delegated authority is not an illegal omission.
Limitations of Act
The Act was formulated about 123 years ago and thus has major limitations in contemporary times where there are changing priorities in public health emergency management. The factors leading to the emergence and spread of communicable diseases have also changed over the years, for example, there is now a great increase in the rate of international travel, more extensive use of air travel because of the aviation revolution, greater migration within the country for better employment avenues. The industrial revolution has also caused urbanization which in turn has led to the increase in the density of population in certain areas, increase in the intensity of contact with animals and birds, man-made ecological changes, changing climatic conditions, technologies of mass food production, breakdown of public health measures and biosafety lapses.
The Epidemic Diseases Act certainly needs modifications in this ever-changing scenario. For example, it is too much oriented towards travel by ship and silent about “air travel”, which was uncommon at that time.[xv] The epidemiological measures used in relation to the prevention and control of epidemic diseases have also changed over time.
The Act is also not in line with the contemporary scientific understanding of outbreak prevention and response, but it only reflects the scientific and legal standards that prevailed at the time when it was framed. For example, the Act places too much emphasis on isolation or quarantine measures, but is silent on the other scientific methods of outbreak prevention and control, such as vaccination, surveillance and organized public health response. The political situation in the country has changed as now we have a dual system of government with better Centre-state relationships. The act also excludes the local Government which could play an important role at the grass-root level for better prevention of the spread of diseases.
Thus, this act of 1897, as such, is not sufficient enough to deal with the prevention and control of communicable diseases in the present times. It also does not provide for the definition and the authority to determine the dangerous epidemic disease.
Various other legislation to combat communicable diseases.
There are many legal provisions which can be used to prevent and control an epidemic, including provisions of the Indian Penal Code,1860 (section 188 provides for punishment for disobedience to any order promulgated by any public servant; section 269 which punishes a person who unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life; section 270 punishes every person who malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life; section 271 punishes every person who knowingly disobeys any rule made by the government for putting any vessel into the state of quarantine), The Disaster Management Act, 2005 (section 51 of the act provides for punishment to any person who without any reasonable cause obstructs any employee of the central or state government in discharge of his functions or refuses to comply with them),The Livestock Importation Act, 1898, Indian Ports Act of 1908, Drugs and Cosmetics Act of 1940, and Aircraft Rules of 1954. Though codifying all the public health legislation is a challenge but it would be beneficial.
A healthy nation is built not only on the good public health infrastructure but also on the ability of the government to prevent and control the spread of diseases as it is a common saying that “prevention is better than cure”. The present legislation for the prevention and control of diseases is outdated and insufficient. There is no uniformity of law pan country as different states have different legal provisions.
There is an urgent need for a comprehensive codified public oriented health code for the times of emergencies which shall include within its ambit the rights of the public for better treatment and power of the state to take measures. It shall also clearly state the public health obligations of the government. There is also a need for the establishment of the control boards at the state and the central level. There is also a need for a mechanism in the proposed legislation for the circulation of public information at the ground level. The legislators can take the help of the Disaster Management Act of 2005 in setting out the details as to how to coordinate the responsibilities of every department at the time of emergencies.
Since Post liberalization, we have seen the privatization of the public health sector. There is a dire need for a public-private partnership model of healthcare during the time of emergencies. The proposed Code shall also specify the basic civil rights of the persons quarantined or isolated. There is also a need for a regulatory authority under the proposed code which supervises in the time’s normalcy the preparation to tackle the emergency and the quality of healthcare infrastructure. The authority can also be useful in helping the delegation of functions during the time of emergencies.
The Epidemic Diseases Act 1897, which is more than a century old, has major limitations when it comes to tackling the epidemics. Although the different states in the country have formulated various legislation to tackle the issue of public health and safety, still there is a need to have a codified law. A new law is needed to meet the demand for new challenges and strengthen the Government to check and control the spread of dangerous diseases. New legislation should be both right centric and duty centric for the citizens of the country. There is also a need to increase the penalty for those who violate the act.
[iii]Sec 2 , The Epidemic Diseases Act, 1897
[viii]Sec 2A , The Epidemic Diseases Act, 1897
[ix]Sec 3 , The Epidemic Diseases Act, 1897
[x]Sec 188 , Indian Penal Code,1860
[xi]Sec 4 , The Epidemic Diseases Act, 1897
[xii] (1903-04) 8 CWN 681 (Cal)
[xiii]ILR (1901) 24 Mad 70
[xiv]AIR 1916 Mad 325
[xv]Sec 2A, The Epidemic Diseases Act, 1897