The pandemic has revealed the brutal colour of humanity as there have been several instances of the healthcare community being targeted and attacked by miscreants, thereby, obstructing them from carrying off their duties. This has led to cases of their stigmatization and ostracization and sometimes worse, acts of unwarranted violence and harassment.
The Central Government has recognized that such situations hamper the medical staff from discharging their duties to their optimum best and maintaining their morale, which is critical in this hour of a national health crisis, and has promulgated an ordinance to amend the Epidemic Disease Act, 1897 to create a safer environment for doctors and health care workers.
The Epidemic Diseases Act, 1897
123-year-old colonial legislation once used to imprison freedom fighter Bal Gangadhar Tilak for 18 months rigorous imprisonment for his newspaper Kesari’s anti-establishment coverage of the plague, has served to be India’s primary weapon against any health exigency until the recent amendment through the ordinance.
It was enacted on 4th February 1897 as a response to the bubonic plague outbreak in Bombay that spread across the country and led to thousands of death. The British Government drew power from the Act to restrict people and to facilitate better prevention of the spread of lethal epidemic diseases.
The legislation was a two page-four section document that had no definitions or clarity on terms whatsoever.
Section 1 gave the Act its name and talked about the territories it could be extended to.
Section 2 empowered the State Government to take exceptional measures and prescribe regulations to control and limit the spread of the disease and Section 2A allowed Union Government to inspect ships & railways and detain and segregate people if necessary.
Section 3 of the Act criminalized disobedience of any order or regulation under it by guaranteeing punishment in the form of fine and imprisonment under Section 188 of Indian Penal Code, 1860.
And finally, Section 4 protected officials & persons acting under this law by safeguarding against all legal-proceedings for anything done in good faith under this Act.
The Act was last invoked in 2018 when Cholera began to spread in a village in Gujarat. It was also invoked in cases of dengue and malaria in 2015 in Chandigarh and H1N1 influenza in 2009 in Pune before being used to combat novel Coronavirus.
The Epidemic Diseases [Amendment] Ordinance 2020
The Central Government resorted to Article 123 of the Constitution for bringing about the amendment in The Epidemic Disease Act, 1897. The Ordinance has seven sections to ensure perpetrators of violence aren’t able to escape because of inadequacies in the punitive law. The Ordinance through amendments elaborates and refines Section 1, 2 and 3 of the Act.
The definition of violence contained in the Ordinance includes harassment, physical injury and damage to property. It clarifies that healthcare service personnel includes public and clinical healthcare service providers such as doctors, nurses, paramedical workers and community health workers; any other persons empowered under the Act to take measures to prevent the outbreak of the disease or spread thereof; and any persons declared as such by the State Government, by notification in the Official Gazette.
The Ordinance says that penal provisions can be invoked in instances of damage to property including a clinical establishment, any facility identified for quarantine and isolation of patients, mobile medical units and any other property in which the healthcare service personnel have a direct interest in relation to the epidemic.
Most importantly, the amendment makes acts of violence cognizable and non-bailable offences. Commission or abetment of such acts of violence shall be punished with imprisonment for a term of three months to five years and with fine of Rs.50,000/- to Rs.2,00,000/-. In case of causing grievous hurt, imprisonment shall be for a term six months to seven years and with fine of Rs.1,00,000/- to Rs.5,00,000/-. Besides, the offender shall also be liable to pay compensation to the victim and twice the fair market value for damage of property.
The legislation appreciates the value of time and declares that offences shall be investigated by an officer of the rank of Inspector within 30 days, and the trial has to be completed in one year unless extended by the court for reasons to be recorded in writing.
Also, the scope of inspection of vessels arriving or leaving the country has been enlarged to include road, rail, sea and air vessels.
Shortcomings & Challenges
It is not wrong of the Government to believe that a colonial law is good enough to fit in the present situation. However, many legal experts believe that The Epidemic Diseases Act is archaic and inefficient as it fails to take into account the realities of the spread of a disease in a modern world and its short and comparatively weaker provisions do not cover the framework to successfully respond to an outbreak.
The law doesn’t have any definitions of basic terms like ‘contagious disease’ and is unclear on the criteria for classifying an outbreak as “dangerous”, based on variables such as the severity of the outbreak. Apart from isolation or quarantine measures, the Act is mum on the legal framework of availability and distribution of vaccine and drugs and implementation of response measures. There’s no aspect of ethical testing and injection of medicines. It doesn’t mention scientific steps that should be undertaken by the government to contain the disease neither does it talk about the circumstances under which it can take away the rights and for how long.
It’s silent on issues like increasing international travel, greater inter-state migration, increased urbanization and high density of people in the cities; change in technologies and industrialization.
The law does not explicitly enable States to ban public gatherings, ask schools and other large organizations to stop functioning, issue advisories to companies to explore work-from-home-models, and penalize media organizations for spreading misinformation.
Though health-care is a State-subject, the hurriedly drafted legislation does not empower the Central government enough nor suggests any clear demarcation of responsibilities. The law does not bestow the Centre any power beyond issuing advisories and coordinating. This essentially disturbs the coordination of supply & demand for medical equipment, drugs, PPE etc across regions.
The act does not provide for how the powers bestowed on the government may be exercised in breach of any existing statute.
The law is pre-constitutional and therefore, has empowered the Government to make sweeping decisions without any consultation in the Parliament. It lacks accountability as the notifications and orders are pure executive actions which can be further delegated compromising on the transparency.
Lastly, the legislation focuses too much on the duties of the government but not on the rights of the citizen. The law hails from the time that had no concept of Fundamental Rights. Therefore, questions on the affordability of medical facilities in such dire times, reasonability and legality of restrictions on the movement of people and who needs to take the decision and ensure that people, especially the disadvantaged sections of the society, have access to basic services — food, water, sanitation and personal entertainment while their freedom is taken away, often arise.
The amendments made to The Epidemic Diseases Act, 1987 would hopefully cater the present need and protect our healthcare workers but there cannot be any excuse to not mention that the measures contained in the Act aren’t sufficient enough to create a robust healthcare system in a long run.
The epidemic law falls short in many places and cannot work in isolation without the help of other disaster management laws. It raises a significant question, when threatened by an outbreak of a pandemic, as to whether to await issuance of orders by several separate authorities under different laws or to secure an order from unified central legislation that covers every aspect of the emergency.
The proposed Public Health Bill, 2017 that seeks to repeal The Epidemic Diseases Act, 1897 seems to serve the purpose better but no concrete activity regarding it has been seen in the Parliament.
However, replacing one law with another would offer no solution until we have better infrastructure, the better health care budget to bring down doctor-patient ratio, efficient surveillance system, strong public health cadres and epidemiologists to provide technical inputs and guide policies. Therefore, India requires drastic measures-both legislative as well as executive.
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