The Need to Review Existing Epidemic Laws in India

Is 19th Century Law serving the needs of the 21st Century?

Introduction

Since the present epidemic laws in India imposes a plethora of restrictions upon the citizens of this country, it becomes imperative to review the existing epidemic laws in the country. Plenty of restrictions are imposed by invoking provisions of epidemic laws in the country so as to put restrictions upon the movement, profession, privacy, religion & free speech of the person. We accept this restriction as they are backed by legislation; therefore a question arises as to whether the present epidemic laws of the country are reasonable and whether they have stood the test of time to remain relevant to meet the needs of the 21st century. The present article will review the Epidemic Diseases Act, 1897 and will determine whether the Act has stood the test of time. The views of the people with regard to the Act are ambivalent, few are of the opinion that the Act is appropriate doesn’t require any changes whereas others are of the opinion that the Act is not effective in meeting its core objective of preventing and curbing the spread of the disease and silent on many crucial points. The Act also gives unilateral powers to the government to act without bounds in a situation like epidemic, therefore putting the much cherished fundamental rights of citizens at peril. The present article will provide insights on the issue and would establish as to why the Act hasn’t stood the test of time and reforms are required with regard to existing epidemic laws in the country.

A Brief Overview of Epidemic Diseases Act, 1897

The Epidemic Diseases Act was brought into force when there was a rapid spread of Bubonic plague in Bombay presidency. The role played by Epidemic Diseases Act, 1897 is to set government machinery into action, once it has been established that there is a considerable threat of an epidemic disease, it grants unilateral powers to government to put out such regulations as it deem fit to contain the spread of the dangerous epidemic diseases in the interest of society at large. The Act constitutes of four sections which provides wide powers to the government to contain the epidemic diseases, though to the astonishment of many it doesn’t define epidemic disease, neither provide any guidelines as to how the powers are going to be exercised. The Act also doesn’t have any provision for setting up a committee to oversee the situation of an epidemic. In addition to it the Act also grants immunity to the officer acting in good faith under the directions of the government.

Section 2 of the Epidemic Diseases Act, 1897 reads as follows-

When at any time the 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.[1]

Further section 2A reads as follows-

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 [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.[2]

It is worth noting from the above that whosoever disobeys any of the above stated regulation shall be liable to punishment under section 188 of Indian Penal Code, 1860. [3]

Violation of Fundamental Rights-

Right to Privacy

It is worth noting that officers are given surveillance authority over an Individual, which totally goes against the spirit of Article 21 of the constitution. The Right to Privacy is a much cherished fundamental right under Article 21 of the Constitution. Further sharing publicly the list of suspected patients goes totally against constitutional mandate. Given the present condition of the epidemic, where states have to use surveillance & force over an Individual, there should be corresponding checks on the use of the power of the state, like any guidelines so as to keep a check on it. The same was illustrated by the landmark judgement of the Apex Court in the case of K.S. Puttaswamy Vs. Union of India[4]  where the court laid down the following tests for  impinging on the fundamental right to privacy:

I. The action must be sanctioned by law

II. The proposed action must be necessary for a legitimate aim

III. The extent of such interference must be proportionate to the need for such interference

IV. There must be procedural guarantees against abuse of such interference

The nine-judge bench of the Supreme Court unanimously in K.S. Puttaswamy case recognized that the Constitution guaranteed the Right to Privacy as an intrinsic part of the right to life and personal liberty under Article 21.

In the view of the same it is recognized principle of the law that Right to privacy is fundamental right, therefore surveillance over an Individual & sharing publicly the list of suspected patients goes totally against constitutional mandate. Therefore reforms are required as to the use of the power by the government so that a balance can be struck between rights to privacy of an Individual and public Interest further the current regulations need to be modified to remove immunity against illegal actions done by State representatives.

Freedom of Speech & Free Expression

Under the constitution of India, this article states that, “Article 19(1)(a) of the Constitution of India guarantees to all its citizens the right to freedom of speech and expression. The law laid downs that, ‘all citizens shall have the right to freedom of speech and expression’. The fundamental right to freedom of speech and expression is regarded as one of the most basic rights in a healthy democracy for it to allow its citizens to participate efficiently and effectively in the social process of the country. The Constitution affirms the right to freedom of speech and expression, which covers the right to voice one’s opinion, the right to seek information and ideas, the right to receive and impart information. The Indian State and judiciary is under an obligation to create conditions in which all the citizens can effectively and efficiently enjoy the aforesaid right.

The Supreme Court held that the freedom of speech and expression includes freedom to propagate ideas which is ensured by freedom of circulation of a publication, as publication is of little value without circulation.[5] In the view of the same it is worth mentioning that free expression has also been restrained under present circumstances since individual has to seek permission from the government as to the circulation of any information related to Covid 19, to curb the spread of fake news, though the objective is noble but the restriction is absolute therefore raising concerns.  Same is illustrated by Section 52 of the Disaster Management Act which prohibits the spread of any wrong information. Therefore there should be some guidelines as to the same, as the absolute restriction to a fundamental right is never justified.

Unbounded power & Silence on crucial areas

Under Section 3 of Epidemic Diseases Act, 1897, a full blanket protection is provided to the officials working under the directions of government; therefore they can go the any length to make sure the orders of the government is being implanted, even at the cost of fundamental rights, which can lead to chaos in the society. Protection should only be provided in conditions like good faith action and for communication of warnings instead of providing a blanket protection.

Further the Act is silent on many crucial areas like how the power is to be exercised by government, procedure for setting up of a committee, definition of epidemic diseases and hence it can be inferred that the act fails to address crucial areas therefore becoming ineffective.

Conclusion

In the view of the above stated observations it can be inferred that the Act fails to stand the test of time, impinging upon the much cherished fundamental rights of the citizens and being silent on many crucial areas is unforgivable. Therefore it’s high time that reforms are introduced in the Act since it doesn’t meet the needs of the 21st century and the colonial law has become outdated. Since the law changes itself to meet the changing needs of the society, the same has to be incorporated in the present situation since society has undergone radical changes since the colonial law, the epidemic law should also be reformed so as to be meaningful in the 21st Century.

Reference-

1. Section 2 of the Epidemic Diseases Act, 1897

2. Section 2A of the Epidemic Diseases Act, 1897

3. Section 3 of the Epidemic Diseases Act, 1897

4. K.S. Puttaswamy Vs. Union of India, (2017) 10 SCC 1.

5. Romesh Thappar v State of Madras (AIR 1950 SC 124) 

Questions Covered by the Article 

1. The role of Epidemic Diseases Act, 1897.

2. What are the powers conferred under Section 2 and 2A of Epidemic Diseases Act, 1897?

3. Is there violation of Right to privacy during lockdown?

4. Is there violation of Right to freedom of speech & expression during lockdown?

5.  Is fundamental rights being violated during lockdown?

6.  What reforms are required in the Epidemic Diseases Act, 1897?


[1] Section 2 of the Epidemic Diseases Act, 1897

[2] Section 2A of the Epidemic Diseases Act, 1897

[3] Section 3 of the Epidemic Diseases Act, 1897 

[4] K.S. Puttaswamy Vs. Union of India, (2017) 10 SCC 1.

[5] Romesh Thappar v State of Madras (AIR 1950 SC 124) 

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