The Epidemic Disease Act was enacted in 1897 by way of notification dated 04.02.1897 to control the bubonic plague outbreak in Bombay (now known as Mumbai). It is a very short act consisting of only 5 sections and its violation is punishable under Section 188 of the Indian Penal Code, 1860 and other relevant sections. It is about 123 years old act for the prevention of the spread of dangerous epidemic disease. The Act has been routinely used to contain various diseases in India such as swine flu (2009), cholera (2018), malaria (2015), and dengue. Presently, it is being used to control the spread of Covid-19. At the time of outspread of Covid-19 pandemic, Karnataka was the first state in India to invoke the act on 11.03.2020 and Haryana became second on 12.03.2020. The Act has been earlier used in control of various epidemics in India which spread from time to time. However, the Act sometimes is deemed to be insufficient in dealing with the purpose as the same is not exhaustive in nature and does not deal with complicated situations. It is to be noticed that India is witnessing epidemiological transition. In the 21st century, the country is facing dual burden of diseases. While struggling to combat the burden of communicable diseases, our health system is challenged to address chronic noncommunicable diseases. The burden and spectrum of infectious diseases are enormous in India. They still contribute about 30% of disease burden in India. Epidemics of communicable diseases impose a heavy economic burden on individuals, families, communities, and nation at large. We still are clueless while handling influenza pandemics and struggle to contain them. The rise in the number, geographic extent, severity of outbreaks, threat of bio-terrorism, emergence of emerging and reemerging infections, volume of air travel, globalization, and the complex lifestyle behaviors of the people has stressed the need for devising new public health interventions to respond to the epidemics effectively and swiftly.

Provisions of the Act

Section 1: Power to take special measures and prescribe regulations as to dangerous epidemic disease.—(1) When at any time the 7[State Government] is satisfied that [the State] or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease, the [State Government], if [it] thinks that the ordinary provisions of the law for the time being in force are insufficient for the purpose, may take, or require or empower any person to take, such measures and, by public notice, prescribe such temporary regulations to be observed by the public or by any person or class of persons as [it] shall deem necessary to prevent the outbreak of such disease or
the spread thereof, and may determine in what manner and by whom any expenses incurred (including compensation if any) shall be defrayed.
(2) In particular and without prejudice to the generality of the foregoing provisions, the [State Government] may take measures and prescribe regulations for—
* * * * *
(b) the inspection of persons travelling by railway or otherwise, and the segregation, in hospital, temporary accommodation or otherwise, of persons suspected by the inspecting officer of being infected with any such disease.

Section 2A: Powers of Central Government.—When the Central Government is satisfied that India or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease and that the ordinary provisions of the law for the time being in force are insufficient to prevent the outbreak of such disease or the spread thereof, the Central Government may take measures and prescribe regulations for the inspection of any ship or vessel leaving or arriving at any port in 2[the territories to which this Act extends] and for such detention thereof, or of any person intending to sail therein, or arriving thereby, as may be necessary.]

Section 3: Penalty.—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).

Section 4. Protection to persons acting under Act.—No suit or other legal proceeding shall lie against any person for anything done or in good faith intended to be done under this Act.

A brief perusal of Section 2 and 2A would show that the Act empowers the Government to make such special provisions which are necessary to spread outburst of any epidemic. However, how this power is to be exercised and what measures can be taken to spread such epidemics is not clear here. Similarly, the Act doesn’t prescribe any procedure to coordinate and limits of power etc. Thus, the Act itself is very vague and only prescribes penalty for violation as prescribed under Section 188 of IPC.

Section 188 of IPC is as under:

  1. Disobedience to order duly promulgated by public servant.—Whoever, knowing that, by an order promulgated by a public serv­ant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple impris­onment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with 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.

Explanation.—It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm. Illustration An order is promulgated by a public servant lawfully empowered to promulgate such order, directing that a religious procession shall not pass down a certain street. A knowingly disobeys the order, and thereby causes danger of riot. A has committed the offence defined in this section.

Punishment for violating orders under the ED Act, 1897: 

Under Section 188, there two offences:

  1. Disobedience to an order lawfully promulgated by a public servant, If such disobedience causes obstruction, annoyance or injury to persons lawfully employed

Punishment: Simple Imprisonment for 1 month or fine of Rs 200 or both

  1. If such disobedience causes danger to human life, health, or safety, etc.

Punishment: Simple Imprisonment for 6 months or fine of Rs 1000 or both

According to the First Schedule of the Criminal Procedure Code (Cr.P.C.), 1973, both offences are cognizable, bailable, and can be tried by any magistrate.

To be punishable under S. 188, the order has to be for public purposes by public functionaries. An order made in a civil suit between two parties does not fall under this Section.

There must be evidence that the accused had knowledge of the order with the disobedience of which he is charged. Mere proof of a general notification promulgating the order does not satisfy the requirements of the section. Mere disobedience of the order does not constitute an offence in itself, it must be shown that the disobedience has or tends to a certain consequence.

Non-Pharmaceutical Interventions under the garb of law:

The act does not provide any guidelines, limitations qua the implementation of Act, but the Governments around India have used the law by making many rules, regulations which are non-pharmaceutical in nature viz closing down the Schools, Malls, Shops to prohibiting the landlords from asking rent. However, the powers are being questioned everywhere and it is to be noted that using excessive power without transparency has historically shown a negative impact on the community participation. Not every state has taken NPI measures, certain states have enacted special provisions qua same to effectively control spread of virus. State regulations such as the Bihar Epidemic Diseases COVID-19 Regulations 2020Uttar Pradesh Epidemic Diseases COVID-19 Regulations 2020Delhi Epidemic Diseases COVID-19 Regulations, 2020 authorise officers of the government to admit and isolate a person in certain situations. Powers have been criticized as they do not clarify rights of citizen or limitation of powers of the public authorities to issue directions. Thus, the directions which are issued may seem to be arbitrary but they have legal sanctity of law under garb of 1897 Act. Though, nothing prohibits judicial review of the guidelines if so required. Needless to mention here that excessive use of power can always be subject matter of judicial review.  

What is the road ahead?

A bare perusal of the Act shows that the Act is insufficient in tackling advance problems and needs to be updated to cater present needs. I personally suggest that the Act needs to be overhauled and needs to contain advance provisions like Disaster Management Act, 2005. Only reason probably for the Government of India to choose DM Act instead of EM Act is that it contains advance provisions to coordinate such extraordinary situation like present times due to outspread of Covid-19. Instead of building a public health framework, the limited purpose of the Epidemic Diseases Act is for the states to take special measures for dangerous epidemic diseases. Within this limited framework, the law gives wide powers to the government to undertake coercive actions against individuals.

Indian states have notified COVID-19 regulations under this law. There are unmitigated powers of surveillance and use of force given to state authorities under them. While such powers are envisaged to be used under the legitimate aim of protecting health of the population, neither the law nor the regulations under it describe procedural guarantees against abuse of state coercion. This is the primary reason for criticism. The law has now been amended by way of ordinance which provides for punishment if any authorities working under the power given under Act are harmed. However, yet the same is incomplete and needs a complete overhaul especially after noting down experiences of Covid-19 spread and its prevention in India.

 

Ravinder Singh Dhull

Additional Advocate General,

Haryana