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Mainstream, VOL LVIII No 16 New Delhi, April 4, 2020

Need for Replacing The Epidemic Diseases Act, 1897 by a Statute Constitutionally Protected

Saturday 4 April 2020

by Gautam Sen

The Epidemic Diseases Act, 1897 is a unique instrument of the British India period, but seems inadequate for the present time and a pandemic affected environment like that resulting from infection of novel Coronavirus or COVID-19. This Act (Act 3 of 1897), is in a way very pithy and an all empowering instrument of the Union and state executive authorities. A health emergency can be virtually declared by invoking the Act. However, no detailed parameters of executive action have been specified therein, and Union governments post-independence, have not instituted appropriate statutory rules for its implementation. The weakness of this Act lies in the fact that, it does not lay down the standards of implementation, and there is no functional or operative relationship with other crucial laws of governance and the supreme framework ie. the Constitution and the fundamental rights. Though there is a provision for state governments for prescribing temporary regulations to prevent the outbreak of dangerous epidemic diseases or spread thereof, there is no directive spelt out enjoining adoption of positive measures towards prophylactic action or action encompassing the entire resources of the state, governmental and private, to prevent outbreak or control the spread of diseases of epidemic proportion. Though the Act enables the defraying of expenses and payment of compensation incurred on the control measures, there is no obligation imposed on the state governments to necessarily deploy funds commensurate with the need from the governments` exchequer and other public and private resources by suitable decree or executive fiat.

While the state governments have been empowered as above, the Central government has been vested with similar powers and in addition, authority to inspect and detain any ship or vessel (other transportation means deemed covered by harmonious construction) arriving in or intending to depart from any Indian port, if considered necessary towards controlling the impending threat or spread of the epidemic. Both the Central and state governments have been empowered under the Act to impose penalty under Section 188 of the Indian Penal Code for the offence of disobeying any regulation or order made under the Act.

First and foremost, it is necessary in the present socio-political context, with different governance dispositions in the Centre and the states, that the Act vests complete responsibility on a centralised authority to be constituted under its provisions, which however, is not provided for under the existing institutional arrangements. Otherwise, obtaining the best outcome from the Central government, the state governments and even local bodies at the third tier of governance, may not be possible. In the contingency of expected outbreak of an epidemic, actual outbreak or spread of an epidemic, it is necessary that such a centralized authority be in overall charge of the situation to the extent of ensuring oversight, disseminating policy guidelines, and coordinating implementation among the Centre and authorities at the provincial and local echelons below. The objective should be the pooling of resources, administrative, medical and financial on real-time basis with a unified overview by such an authority. The financial part is presently being attempted by normal budgetary provisions and inter-authority transfers ie. Centre-state fund transfers, etc, which may not always be undertaken in the most optimum manner considering that funds to the extent required in a fast changing situation, may not always be available at the state level where primary action lies.

The existing Act is in a sense, more of regulatory nature, enabling the instituting of restrictions and controls, to prevent the setting in and spread of an epidemic. The Act enables suppressive measures for epidemic control and spread. However, there is a need to built in appropriate provisions in the Act, so that governments, both at the Centre and states, are encouraged to and can adopt mitigation measures as per the exigencies of the situation. Through the instrumentality of the Act, the governmental authorities should be able to and obligated to utilize the state apparatus and resources as well as mobilise resources with private organizations and individuals by requisitioning them. While a centralized and empowered authority as mooted above, should be able to decide on such matters and act decisively, the Central and state governments of the day mandated to implement the overarching decisions of such an authority, within the enabling provisions of the Act. State governments have been adopting their own guidelines to deal with epidemics including in regard to Coronavirus. In fact, such state specific guidelines may sometimes be more appropriate and suited to regional and local milieu and needs. The Act if suitably tweaked, it could provide for harmonization of state and local measures and initiatives within the ambit of overall national guidelines laid down by Central Heath Ministry, Directorate General of Health Services and Indian Council of Medical Research, etc.

While the Indian Constitution provides for declaration of national emergency under conditions of threat to the nation`s security, and also when financial status is significantly imperiled. There is however, no explicit provision for declaring a national emergency contingent on health status of its people being seriously endangered. Though a broad view may be taken that, there is no impediment towards declaring an emergency if the Indian populace is gravely affected or incapacitated by an epidemic, it may be appropriate to have an Act in our statute books which specifically authorizes the Central government to declare a national emergency or partial ie. regional or state-specific emergency, by provisions of such an Act in conjunction of the emergency provisions of the Constitution. Such an Act duly amplified as suggested above, could be incorporated as a Schedule of the Constitution for permanency and reckoning its very nature.

The Epidemic Diseases Act, 1897, was originally enacted by British parliament in the backdrop of the Bubonic Plague in India. This Act was in justaposition to the Indian Council Act, 1892 promulgated by the British Crown functioning through the Viceroy, which bestowed limited powers to the Indian Central legislature to deliberate on critical public matters. Thus, this legislature really had no say in the formulation of this legislation and its suitability in the conditions then prevailing in India. The Epidemic Diseases Act, 1897, was put through in an environment woefully unrepresentative of the India peoples` wishes and aspirations. As already mentioned, it was more with a view to instituting suppressive controls rather than sensitizing the affected people to the dangers of proliferation of the epidemic and adoption of mitigating measures. The Act is neither public rights based, nor lays down any obligation for the governments and public authorities to resort to compulsory norm-based action to garner resources on an emergency basis, to contain the epidemic and maintain the bare minimum livelihood needs of the people such as, provide for exclusive shelter, rations, medicines and medicare. Fundamental Rights of the people may perforce have to be circumscribed, in the overall public-cum-national interest. A crucial statute like the Epidemic Diseases Act, has necessarily to spell out the parameters for the purpose, which it fails to do.

Government of India has been using the Epidemic Diseases Act, 1897, in conjunction with the Disaster Management Act, 2005, to contain the spread of Coronovirus and consequential mitigation measures. This only proves the inadequacy of the Epidemic Diseases Act in the existing circumstances. A framework is required exclusive to needs of epidemics or rather pandemics, which provides for restrictive measures like isolation, quarantine, etc, in a way commensurate with the severity of the impact of the epidemic, with bare minimum existential needs guaranteed, while tapping resources from all available sources in an organized and accountable way. The governments have to be empowered accordingly while the people counseled and sensitized for the purpose. An instrument is needed with this objective in view.

The author is a retired Civil Service officer, who has served in senior appointments of Government of India and North-Eastern State Governments. The views are personal. 

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