In the wake of the COVID-19 pandemic, the legal instrument which guides the governmental response of the Indian Republic as it deals with the biggest existential challenge of the twenty-first century, is a 123 years old legislation, drafted by, for, and on behalf of our erstwhile colonial masters. Officially drafted with the object of preventing the spread of Dangerous Epidemic Diseases, the Epidemic Diseases Act, 1897 (“EDA, 1897”) was swiftly put into action to punish nationalist voices. Enforced for the first time during the catastrophic bubonic plague in the Bombay State, the Act was famously used to imprison “the father of the Indian unrest”, Lokmanya Bal Gangadhar Tilak, for 18 months, for writing against the poor handling of the Bombay plague.
Scheme of EDA, 1897
It is unfortunate but not surprising that the Act, which has all but five Sections in total, falls woefully short of preparing the nation for its relentless fight against pandemics like the present one. While Section 1 extends the Act to the whole of India, Section 2 provides the State Government, the power to “prescribe such temporary regulations to be observed by the public…as it shall deem necessary to prevent the outbreak of such disease”. Most unfortunately, Section 2A reduces the Central Government to a mere port-inspection authority by providing that the “Central Government may take measures and prescribe regulations for the inspection of any ship or vessel leaving or arriving at any port”. Section 3 pertains to Penalty, but does not make for an adequate deterrence in as much as it provides that “Any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under section 188 of the Indian Penal Code (45 of 1860).” Finally, Section 4 provides legal protection to persons acting under good faith under the Act.
No real power to Central Government
It is worrisome that EDA, 1897 does not grant any power to the Central Government (save that of the inspection of ships and vessels), because under the Constitutional arrangement, Public Health is a State subject. And that may be fine, because in peace time, decentralization leads to more effective capacity building. However, in times of a national health emergency, one may argue that the Union needs greater control over the nation’s medical resources, to steer the country’s response to the crisis. In a scenario where the medical infrastructure of some states is bound to get more burdened than the others, coordination becomes imperative. One State may run out of testing kits, other may be in dire need of ventilators, and yet another may not have enough medical staff to support the diseased. Given the competitive multi-party nature of our polity, the lives of people cannot be risked by relying on the goodwill, and the administrative ability of the States to fend for themselves. Ordinarily, while the Union has the power to issue directions under the politically contentious Article 257 of the Constitution, the nation may not have the time and the patience to wait for the regular transaction of business. It would have been beneficial to have a National Task Force, which had the ability to monitor the developments on a real-time basis, and issue directions on an expedited basis.
Inappropriate Penalty for Violation of Government Directives
As India adopts Social Distancing as the mantra, and States go under lockdown, the provision of penalty for violators assumes significance. The penalty fixed under EDA, 1897 is wholly inadequate, and inappropriate, in as much as it makes disobedience an offence merely under Section 188, Indian Penal Code, 1860. This effectively means that a FIR will be registered, and upon investigation and Trial, if the charge is proven, only then a punishment of “imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both” will be granted. In a scenario where one infected person’s defiance has the effect of risking the lives of thousands, the ability of the State cannot be limited to the registration of a nominal FIR. In the Western world, ‘tickets’ are being issued to violators by law enforcement agencies, by imposing prohibitively expensive fines. In India, immediate compliance with restrictions is imperative and therefore, fines and house arrests may be important in certain cases.
Dissemination of information
Experience has demonstrated that reckless dissemination of information can render all containment measures ineffective. As Coronavirus was wreaking havoc in the northern regions of Italy, the plan to put Italy in lockdown was leaked to the press, and what followed was chaos, as thousands fled, taking with themselves, the COVID-19 virus to newer areas. That India would soon find itself in the midst of a prolonged lockdown became increasingly evident from the beginning, and it is not unfathomable to imagine that a large majority of migrants, working in metro cities may have gone back to their hometowns in the hinterland, as carriers of the COVID-19 virus. This necessitates the importance of preventing leaks, and acting against panic-inducing reportage- something that EDA, 1897 fails to address.
Enhancing Monitoring Capabilities & Planning Graded Response
In a lot of states, the inadequacy of EDA, 1897 has led to the invocation of the Disaster Management Act, 2005 (“DMA, 2005”). Unlike DMA, 2005 which puts in place a National Disaster Management Authority, EDA, 1897 does not provision for any specialised Authority to deal with epidemic- response. As late as mid-January, the World Health Organisation (“WHO”) was busy relaying Chinese propaganda to the rest of the world. WHO advocated that there should be no travel ban on flights to and from Wuhan, and that the virus was showing no signs of human to human transmission. Taiwan has confirmed that it had shared with WHO, evidence that the virus was capable of human to human transmission, as early as in late December. While the post-mortem can wait, there is no denying the fact that information-sharing becomes crucial, especially when dealing with China, a country which fights information warfare with increasing vengeance. If EDA, 1897 gave powers and responsibilities to a body of experts, which was capable of independently assessing and determining the future course of action after studying information available from partners, India could have been in a place to launch a graded response long before the pandemic became uncontrollable.
Surveillance: The Necessary Evil
Aggressive contact tracing, prompt isolation, and advanced surveillance have been at the heart of the commendable South Korean response to the COVID- 19 virus. While right to privacy is a fundamental right, one may argue that it is necessary for it to be reasonably restricted, in wake of a pandemic outbreak. South Korean medical officials treated their epidemiological investigations like police detectives. Reports suggest that Health officials would retrace patients’ movements using security camera footage, credit card records, and GPS data from their cars and cellphones. Media reports further suggest that South Koreans’ cellphones vibrate with emergency alerts whenever new cases are discovered in their districts. Websites and smartphone apps detail hour-by-hour, sometimes minute-by-minute, timelines of infected people’s travel — which buses they took, when and where they got on and off, even whether they were wearing masks. Proactive response of this form may be a game-changer in a country’s fight against the growing pandemic.
The object of having a specialised legislation to deal with a pandemic as serious and widespread as the present one, is to put in place a governance paradigm which is fundamentally more proactive than the regular governmental structure. EDA, 1897 fails to address this object, in as much as it does not sufficiently equip the Central and State governments to contain the spread of Wuhan-originated COVID- 19 virus.
Image Source: PTI