Preetham Jude Correa
The Backdrop
A prima facie examination of India’s handling of the global pandemic, regarding the response of our public administration and healthcare system would reveal systemic chaos.
Predictable, preventable and pointless, the fallout of the COVID-19 pandemic in India has brought to the fore – like nothing before it – a system that is, in many ways, frayed and disconnected. From the implementation of our first lockdown to the humanitarian crisis that was created when our migrant workers were hung out to dry, we have seen a country that resembles anything but a well-oiled, operational machine. [i]
Our Central and State governments tried their very best to tackle the virus with whatever resources were at their disposal, one of which included a piece of legislation that was passed 123 years ago. The Epidemic Diseases Act, 1897 (hereinafter referred to as the Act) was invoked by multiple state governments (at the behest of the Union government) so as to confer on the state apparatus sweeping powers that would enable it to efficiently deal with the worst public health crisis in recent memory. [ii] They expected to be able to do this with a century-old law that consists of only four sections, none of which specifically lay out the manner or procedure in which the measures are to be adopted and enforced.
The problem with wielding such a law is much like wielding a double-edged sword: it cuts both ways.
The Over-Arching Powers of the Legislation
Possessing merely four sections, the Act seemingly allows the exercise of largely unfettered power by whichever governmental body is authorized by it.
Section 2 sets out the ‘power to take special measures and prescription of regulations as to dangerous epidemic diseases’ [iii] while Section 3 states the penalty for violation of orders promulgated under the Act. [iv] The protection, from legal proceedings, to anyone acting under the power of the Act is awarded under Section 4. [v] All of these, used in consonance, are intended to serve as a legitimizing force that will enable the public machinery to fill up the gaps where other laws fall short when dealing with novel health crises.
The sections which are the most disconcerting, when thought of as being able to impinge on our fundamental rights and due process, are Sections 3 and 4.
Section 3 mandates punishment for violation of orders passed under this Act pari passu with offences punishable under Section 188 of the Indian Penal Code, 1860. With no further details of the commission of possible offences or the subsequent penalty, this section seems to wantonly leave any curtailing measure, on the state’s power, vague and ambiguous. [vi]
Moving on to Section 4, we see the existence of a ‘good faith’ protection that bars any and all legal recourse against any person for anything done or in good faith intended to be done under this Act. The existence of an all-encompassing protection under a special law that is this powerful in its nature, in a constitutional democracy such as ours, is extremely worrisome.
Legal Loopholes Abound
It is now clear that the Epidemic Diseases Act is only regulatory in its nature and intended functioning. While prescribing over-reaching powers, and subsequent protection, to the government, it is largely devoid of specific due process under which a person’s autonomy, right to privacy and liberty can be restricted. The immediate consequence of this is that arbitrary and unscientific decisions can be thrust on the general populace with no built-in safeguards or remedies, should they be required.
Additionally, the only logical manner in which a health issue of such a magnitude can be dealt with is by the use of a pre-determined and concerted response structure that follows a clear chain of command, rather than an ad hoc mechanism that plays catch-up with itself based on apparent successes – that are a result of a trial and error system – which has been in vogue these past three months.
The surveillance measures that were mandated and enforced by the Union government, as a part of its multi-pronged response mechanism, find no basis in the Act. It is another matter altogether that the right to privacy of multiple citizens was simply cast aside by the state machinery in its desire to track the movements of people it believed to be potential carriers of the virus. [vii] The entire concept of an individual’s right to have their medical details kept confidential was voided by an over-zealous administration that sought to broadcast to the public the number of infected people, and their background details, in the hope that the consequent isolation would prevent the ‘domino effect’ of transmission in communities.
Furthermore, the ‘good faith’ protection that applies to persons acting under this Act seems rather antithetical in light of widespread instances of police brutality and bureaucratic high-handedness that were put on display all over the country. [viii] The very people the Act intends to protect are the ones who require protection from those ‘protecting’ them.
Let us, for a moment, overlook the fact that the Act has not set up a coherent response structure nor specified the authorities that will be empowered to deal with public health issues. Let us also overlook the fact that it has not bifurcated the responsibilities between the Union and the states as regards dealing with a nationwide pandemic that sees simultaneous crests and troughs at different locations across the country. At the very essence of its being – its foundation – it hasn’t even defined what an ‘epidemic’ is or when it should be applied.
We thus have a law, which, while suffering from a major inadequacy at its core, is used to vest in the state such tremendous power that can over-ride the functioning of existing laws while diminishing the applicability of our civil liberties.
Ironing Out the Creases
The ability of the government to handle such unforeseeable issues by employing a capable and balanced law is of paramount importance. The curtailing of the liberty of our people, in such a blanket manner, coupled with the unrestrained exercise of power carried out beyond the bounds of a clear-cut regulatory framework does not bode well for a nation that has enshrined, through its founding document, values like liberty and due process.
Moving forward, it falls to the legislature and policy makers to reform – or even replace – this law with an Act of Parliament that could emulate the National Health Security Act, 2007 (Australia) [ix] and the Public Health (Control of Disease) Act, 1984 (England), [x] both of which contain measures and mechanisms to pre-empt, prevent and prevail over health emergencies that take place on such a scale. While Australia’s legislation provides for a structured dissemination of information, it lays out a scheme of governance that uses a co-ordinated response system. Similarly, England’s legislation has chalked out top-to-bottom responsibilities while enhancing the readiness of its public health system so as to achieve sufficient capability to deal with nationwide health emergencies.
The common thread that runs through the above-mentioned legislations is this: cohesion. From start to finish, they have created a synchronised response mechanism that accounts for all variables while not losing sight of its goal. The Indian government would do very well to keep these factors in mind as it sets out on the arduous journey to heal this land, in terms of health and legislation.
It would also be worth considering the debate that surrounded the tabling of the Coronavirus Bill, 2020 (now known as the Coronavirus Act, 2020) in the Parliament of the United Kingdom. While there have been calls for greater scrutiny regarding the protection of human rights during and after the imposition of this law, a considered approach that is arrived at – after evaluating its drawbacks – would be of immeasurable assistance in guiding our law makers. [xi]
After all is said and done, the government – in its desire to care for the populace of this nation by legislatively arming itself against a killer disease – must ensure that it does not trample on what ultimately makes life worth living: liberty.
[[i]] Sruthisagar Yamunam, Why Isn’t There A Vande Bharat Mission To Get India’s Migrant Workers Home? ,SCROLL.IN, The Daily Fix, (May 14, 2020, 9:36 AM), https://scroll.in/article/961882/why-isnt-there-a-vande-bharat-mission-for-indias-migrant-workers-to-get-home.
[[ii]] Bindu Shajan Perpaddan, Coronavirus | States To Be Asked To Invoke Epidemic Disease Act: Centre, THE HINDU, (Mar. 11, 2020, 11:11 PM), https://www.thehindu.com/news/national/coronavirus-states-to-be-asked-to-invoke-epidemic-disease-act-centre/article31043653.ece.
[[iii]] Epidemic Diseases Act, 1897, Act No. 3 of 1897.
[[iv]] Ibid.
[[v]] Supra note 3.
[[vi]] Manish Tewari, India’s Fight against Health Emergencies: In Search of a Legal Architecture, ORF Issue Brief No. 349, March 2020, Observer Research Foundation, https://www.orfonline.org/research/indias-fight-against-health-emergencies-in-search-of-a-legal-architecture-63884/.
[[vii]] Andrew Clarance, Aarogya Setu: Why India’s Covid-19 Contact Tracing App Is Controversial, BBC NEWS, (May 15, 2020), https://www.bbc.com/news/world-asia-india-52659520.
[[viii]] Ankita Mukhopadhyay, India: Police Under Fire For Using Violence To Enforce Coronavirus Lockdown, DW NEWS, (Mar. 03, 2020), https://p.dw.com/p/3a9rJ.
[[ix]] “Strong and Secure: A Strategy for Australia’s National Security”, Department of the Prime Minister and Cabinet, Government of Australia, https://www.files.ethz.ch/isn/167267/Australia%20A%20Strategy%20for%20National%20Securit.pdf.
[[x]] Public Health (Control of Disease) Act 1984, http://www.legislation.gov.uk/ukpga/1984/22/contents.
[[xi]] Daniel Kraemer, Coronavirus: What’s in the emergency legislation?, BBC NEWS, (Mar. 25, 2020), https://www.bbc.com/news/uk-politics-52004116.
The author is a final year student of Symbiosis Law School, Pune.
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