The current COVID- 19 situation is putting healthcare systems all over the world to test as the number of cases reported is increasing day by day.
In understanding the various measures taken by the government in containing the pandemic, it becomes essential to analyze the legal framework and the statutory law relating to appropriate measures to be taken in a health emergency. Prime Minister Narendra Modi announced a complete lockdown of India for 21 days starting 25 March 2020 as a measure to contain the spread of the global pandemic.
Before this announcement, different state governments including Delhi, Maharashtra, and Telangana had already announced state-wide regulations for the same reason. The decisions taken the state governments is by invoking the British-era legislation known as The Epidemic Diseases Act, 1897.
The enactment of The Epidemic Diseases Act, 1897
The legislation owes its origin to the 1896 Bubonic plague epidemic of Bombay which began in September that year and gradually spread to other parts of the subcontinent and was a well- known event in the timeline of colonial India.
During this period, the society responded with panic and the extreme measures taken by the administration proved useless to control the situation. Queen Victoria addressed both the houses of the Parliament and stated that her government had taken the most stringent measures to deal with the situation. A week after Queen Victoria’s address, the Epidemic Diseases Bill was introduced in the Council of the Governor-General in India for the prevention of the spread of dangerous epidemic diseases.
The member who introduced it, John Woodburn, recognised that the powers mentioned in the Bill were extraordinary but necessary. He believed that people must “trust the discretion of the executive in the grave and critical circumstances.”
The vague wording of the legislation was criticised, but the government maintained that it was meant for the benefit of the local bodies who could apply the Act in the manner suited to their conditions. Thus there was an undertone of authoritarianism to the Act as the government expected the people to trust the administration and hence give it full discretion in case of an epidemic situation.
The Act also inheres the colonial assumption of the inferiority of the general public. The Act is deficient for three key reasons.
First, the law fails to define “dangerous”, “infectious”, or “contagious diseases”, let alone an “epidemic”. There is no elaboration in the Act on the extant rules and procedures for arriving at a benchmark to determine that a particular disease needs to be declared as an epidemic.
The second limitation is that the law contains no provisions on the sequestering and the sequencing required for dissemination of drugs/vaccines, and the quarantine measures and other preventive steps that need to be taken.
Third, there is no underlying delineation of the fundamental principles of human rights that need to be observed during the implementation of emergency measures in an epidemic. The Act emphasises only the powers of the central and state governments during the epidemic, but it does not describe the government’s duties in preventing and controlling the epidemic, nor does it explicitly state the rights of the citizens during the event of a significant disease outbreak.
The fact that we are controlling a 2020 pandemic using a law that was passed 123 years ago is alarming. The circumstances in which the country is both socially and economically is vastly different than what it was during the colonial period. We are now an informed democracy and vesting of too much power and discretion in the hands of the bureaucracy is dangerous in the current situation. The citizenry of the country is better informed due to various mediums such as the internet and social media. Once the pandemic situation comes under control, the law must be repealed and replaced by a more modern and comprehensive piece of legislation.
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