A. INTRODUCTION:
In an era in which, the prevalence of non-communicable diseases is on the rise, there exists a significant percentage of communicable diseases which contribute to the widespread diseases in India. Apart from various biological and behavioural public health interventions, there is a need to closely monitor and use the legal mechanisms to contain the outbreak of a particular disease.
B. THE EPIDEMIC DISEASES ACT, 1897(“ED Act”):
The ED Act was implemented as on February 4th, 1897, to stop the widespread of plague in the then state of Bombay. It gave the British government in India the power to limit individuals from gathering and assembling in huge numbers. The objective of the ED Act is stated as, “better prevention of the spread of dangerous epidemic disease”. The ED Act has been divided into four sections, the first section states the title and the extent of the applicability of the ED Act, the State derives its power from the section two, which is to take special measures and prescribe regulations that are to be observed by the public at large to contain the spread of an epidemic. In the third section, the ED Act defines the penalty for violating the regulations, and the last section of the ED Act deals with the legal protection to persons acting under the ED Act.
1. Brief History of the ED Act:
In the year 1896, the bubonic plague epidemic was on the rise, in the entire world, which gradually spread to most parts of the subcontinents. As has been the situation with scourges, alarm and scapegoating shaped a significant piece of the cultural reaction, and extraordinary estimates commanded the authoritative reaction. Upon Queen Victoria’s directions, the ED Act finally came into force in February 1897. The outbreak of bubonic plague in Bombay led to 1000s of deaths in the 1890s. Bubonic plague occurs due to a bacteria known as “Yersinia Pestis” which infects human beings through oriental rat flea and such infected persons would show regular flu-like symptoms such as fever, cold and cough. The gestation period for this bubonic plague was a period of 7 days. This gave the British Indian Government, to use the powers vested under the ED Act, to restrict huge gatherings of people. The people of India alleged that the said ED Act was authoritarian in nature and was introduced for exterior motives to use unreasonable force and contain its people. It was alleged that the state has used strict and stringent methods by the officials to transport the sick to hospital and would lead to the unnecessary frisking of the general public at large. All in all, the British Indian Government unlawfully used this legislation to exhibit its brute force and restrain the movement of the public at large.
The ED Act has been recently used by the Government in 2018 during the outbreak of Cholera in Gujarat, in 2015 to deal with the widespread of dengue and malaria in Chandigarh and in 2009 to deal with the swine flu outbreak in Pune.
2. Powers under the ED Act:
Section 2 of the ED Act, which lays down the powers of the State, which are as follows:
- “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. The state government may prescribe regulations for 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.”
- “In particular and without prejudice to the generality of the foregoing provisions, the State Government may take measures and 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.”
It is evident from the above section that, the state is empowered with wide discretionary powers to control the epidemic outbreak in the territory of India. The state is also vested with the responsibility of inspection in carriers of transport like trains and ships. This mode of the inspection was however feasible in the pre-independence era. However, modern development in India makes this exercise extremely futile and non-feasible.
Section 3 of the ED Act lays down the penalty for the non-compliance of any regulation or order made under this Act. The penalty shall be in accordance with section 188 of the Indian Penal Code, 1860 (“IPC”). Pursuant to section 188 of IPC, the penalty shall be imprisonment for a period of 6 months or a fine of Rs. 1000/- or both and the same shall be enforced against people who are found to be guilty under the ED Act.
Finally, Section 4, grants immunity from all legal proceedings to all the officials exercising their powers under this ED Act.
The ED Act ensures that no public gatherings shall be made and ensures the stoppage of functioning of large institutions to avoid the spread of an epidemic.
3. Limitations of the ED Act:
The ED Act is a 123 year old, bygone structure. The ED Act over the years has accumulated numerous inconsistencies which can be attributed to the evolving developments in the public health emergency. The ED Act does not define the term “dangerous epidemic disease”. As a consequence, there exists no restriction or limitation for the application of the ED Act. The ED Act does not provide a reasonable framework for ‘control of the epidemic” as it only lays down a few and minute measures. The ED Act also fails to provide any provision for the role of the State in the distribution of medicines or vaccine for its people. There is no explicit reference pertaining to the ethical aspects or human rights principles during a response to an epidemic. The ED Act requires the State under Section 2 to notify to the public, any special measures to be adopted to control the epidemic, but it should be borne in mind that, in the absence of a concrete definition of the “dangerous epidemic disease”, such notification cannot serve its purpose. However, a notification is essential for good surveillance and to gauge the burden of disease in the community, as it is likely to help in planning, implementing and evaluating programmes for the control of the epidemic. As discussed above in this article, the ED Act is purely regulatory in nature and does not provide any specification with regard to public health and welfare. The ED Act does not enlist or suggest definitive State obligations in controlling the widespread epidemic. The ED Act is also, quiet on the moral viewpoints or human rights rules that become an integral factor during the reaction to an epidemic. Individual autonomy, liberty and privacy ought to be regarded to the best degree conceivable, in any event, during the implementation of laws.
C. DISASTER MANAGEMENT ACT, 2005 (“DM Act”):
The DM Act is a central legislation and was implemented in 2005. The purpose behind the DM Act is to oversee disasters, including the readiness of mitigation procedures to overcome the disasters. In layman’s terms, a disaster is typically connected with a characteristic catastrophe, for example, a tornado or an earthquake. Indeed, even the meaning of a “disaster” in Section 2 (d) of the Disaster Management Act expresses that a disaster implies a “calamity, accident, cataclysm or grave event in any region, emerging from regular or man-made causes… “. To address the present pestilence episode, the Central government has incorporated the Covid-19 flare-up as a pandemic situation. The provisions of the DM Act lay down a structure for the purpose of disaster management and mitigation. The structure sets forth the setting up of the National Disaster Management Authority and the State Disaster Management Authority. These authorities have been vested with powers to frame policies, plans and guidelines to ensure a timely response to the disaster, in today’s situation COVID-19.
D. OUR VIEW:
Considering the current scenario, the state governments have issued various notifications and orders to ensure at most safety and to limit the spreading of the novel COVID-19. The Labour Departments of various states have also issued various advisories and orders concerning the wage payments to be made to the employees during the lockdown period. The Government of Telangana, Haryana, Delhi and Puducherry have issued orders that all the workers employed in private factories and shops and establishments shall be paid salary in full during the subsistence of the lockdown period. However, a few other states have only issued advisories pertaining to wage payments and termination of employees during the lockdown period.
The state governments have placed reliance on the DM Act and the ED Act with regard to passing the aforesaid orders, but however, these acts purely deal with ensuring the containment of a disaster and formulate measures towards avoiding the widespread of a disease, in today’s scenario COVID-19. Therefore, it can be clearly deduced that the government does not have any power or authority under the ED Act and the DM Act to issue notifications and orders directing the payment of wages in full to the employees or termination of employees during the lockdown period.
E. CONCLUSION:
It can be concluded that, with the continuous changes in the society and the rapid introductions of mechanisms looking into the welfare of the human beings, the ED Act has become stagnant and has not laid down any measures which would provide for the current prevalent situation i.e., COVID-19. The ED Act ought to have laid down circumstances under which the authorities may curtail the free movement and rights of the people and the scope of the ED Act should have been widened, considering the growth in the number of wide spreading diseases which have had an adverse impact on the society and the economy as a whole. Further, looking into the aspect of wage payments in full to the employees during the prevalence of COVID-19, the Government of India shall as a way forward formulate a scheme to protect the employers and should formulate a revival plan by considering wage cost subsidisation during lock-down and shall allow wage cuts at least to a certain extent.
Authors: Raghu Babu Gunturu, Mentor & Strategic Advisor; Kriti Sanghi, Associate.
Disclaimer: The content of this article is intended to provide a general guide to the subject matter. For any queries, the authors can be reached at (i) raghu@samistilegal.in (ii) kritisanghi@samistilegal.in.
Updated as on April 16, 2020
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