The legal hole in battling Covid-19
The Epidemic Diseases Act of 1897 is inadequate to tackle public health emergencies. Update it
The Union government recently advised the states to invoke the Epidemic Diseases Act of 1897. The travesty is that this fossilised 123-year-old Act does not even define what an epidemic is. This one-page, four-section-long Act is ill-equipped to deal with the coronavirus (Covid-19) pandemic. Nations such as Australia, Canada, England and the United States (US), over the years, have enacted holistic laws to deal with public health emergencies.
The Act came into effect on February 4, 1897, to counter the bubonic plague epidemic in Mumbai. The Act was unable to restrict the plague to Mumbai and it soon spread to Bengaluru and other parts. The first section of the Act lays out the title and the extent of the bill; the second section authorises the state and central government to take exceptional measures and prescribe regulations that are to be observed to limit the spread of the disease; the third section specifies penalties for those violating the edict; and the fourth section gives protection under the law to officials and/or persons acting under the Act.
The Act is deficient as it fails to even define a dangerous disease, let alone an epidemic. It is silent on the sequestering and the sequencing required for the dissemination of drugs/ vaccines and other preventive steps. Neither is there any underlying conception of the principles of human rights that need to be observed during the contingency and emergency measures to be implemented. The punishment prescribed in terms of Section 3 of the Act, that is pari-passu with Section 188 of the Indian Penal Code, also needs to be revisited This Section provides for a fine of ~200 and simple imprisonment of one month for violating an order of a public servant. While ~200 is a pittance, imprisonment is an excess.
Earlier, the Centre had conceptualised statutes such as the Model Public Health Act of 1955 that was updated in 1987. It was unable to convince states to adopt it since health is a state subject. The National Health Bill, 2009, was similarly targeted at providing an overarching legal framework for the provision of essential public health services by recognising health as a fundamental right. It also provided for a response mechanism for public health emergencies by outlining a collaborative federal framework. However, these did not lead to a legal structure as states considered it an encroachment on their domains.
India’s legal framework, therefore, comes up wretchedly short when contrasted with contemporaneous laws that exist elsewhere.
In Canada, emergency measures and emergency management at the federal level are governed by the Emergency Act, 1988, and the Emergency Management Act, 2007. Most provinces also have their own health Acts that delineate measures that are to be implemented in case of a health emergency. However, there is a comparatively higher bar for the federal government to take the lead in a health emergency. Hence, most health crises in Canada are handled at the provincial level in coordination with the central government.
In Australia, the National Health Security Act, 2007, puts in place processes and structures to pre-empt, prevent and, in an eventuality, deal with national health emergencies, with designated entities providing coordination and oversight at the national level and the provinces applying their own laws, jurisdictional responses and coordination processes.
In England, the Public Health (Control of Disease) Act, 1984, was brought into force with the aim of creating specific functions for different authorities in response to a national health emergency. This Act provides for a clear hierarchical chain in which the primary, secondary and tertiary responders need to operate when dealing with a health challenge. Responsibilities are clearly defined in the Act.
The Public Health Service Act, 1944, in the US performs a similar function and creates an administrative framework to deal with any public health emergency. It foresees the need for supplemental manpower by creating a reserve corps to augment commissioned corps at short notice. The Act was last amended in December 2019. President Donald Trump has now invoked the Defense Production Act 1950 to battle the pandemic.
With the bare-bones legislative structure that exists in India, the State will find it hard to find legal backing to lockdown entire cities, forcefully quarantine people, order the temporary closure of businesses, and distribute medicines were the contingency to arise. The manner in which people who have returned from abroad, and are reported as being unwell, are being picked up by police forces is a primitive response to the current situation. One person from Balachour, in my constituency of Anandpur Sahib, tragically committed suicide by jumping off the roof of Safdarjung hospital after he was taken for testing. The stage is set for a gross mismanagement that the country can ill-afford at this juncture.
During a discussion on the coronavirus in the Lok Sabha, I had pointed out this legal anomaly, while urging the government to bring about emergency legislation as Parliament is in session to rectify the situation. However, the suggestion, like all other good ones, fell on deaf ears.
Once again, I would like to urge the government that public health emergencies, such as the one that the coronavirus situation has created, provide an opportunity to update our laws. Some day, in the not-too-distant future, this legislative and policy gap could become our Achilles’ heel.
Manish Tewari is a lawyer, MP and former Union minister for information and broadcasting
The views expressed are personal