November 24, 2020

Laws in The Time of Corona: Need for A New Enactment?

Introduction

In December 2019, reports emerged about a ‘novel virus’ wreaking havoc in Wuhan, China. Since then, the virus has created chaos in nearly every country in the world. It has been described as a ‘global pandemic’ and a ‘Public Health Emergency of International Concern.’ Rechristened as COVID-19, the virus has claimed more than 3,50,000 lives all over the world. In India, the nationwide lockdown has been one of the key strategies of the government to battle the virus. The Constitution grants power to the Central & State governments to deal with the current pandemic. Entries 1 and 6 in the State List empowers the State governments to deal with matters of ‘public order’ and ‘public health’ respectively.[1] Entry 29 in the Concurrent List authorises the Central and State governments to legislate on matters related to ‘prevention of the extension from one State to another of infectious or contagious diseases or pests affecting men, animals or plants.’[2] As the country still reels from the unprecedented effects of the virus, the government has invoked the provisions of two key enactments: The Epidemic Diseases Act, 1897 and The Disaster Management Act, 2005. This article offers an insight into the aforementioned enactments and analyses how the provisions help in dealing with the pandemic. Further, it looks into the need for an exclusive legislation to deal with similar pandemics in future.

The Epidemic Diseases Act, 1897

The year was 1896. The situation in Bombay, the ‘City of dreams’ was nothing short of a nightmare. The city was the epicentre of the bubonic plague which was said to have been originated in China. Factors such as heavy monsoon, inadequate sewage system and overcrowding made the conditions worse and gradually, the plague spread to other parts of India. A need for stringent measures was felt to combat the deadly plague. In 1897, the Epidemic Diseases Bill was introduced in the Council of the Governor-General of India in Calcutta for the “better prevention of the spread of dangerous epidemic diseases.”[3] The powers mentioned in the Bill were considered to be ‘extraordinary’ but ‘necessary’.[4] The Epidemic Diseases Act (ED Act) was passed on February 4, 1897.

The Act was concise as it comprised of only four sections. Section 2 provides for the powers of the State government to take special measures and prescribe regulations. The section empowered the State government to inspect persons travelling by railway or otherwise. Further, it had the power to take measures for segregation in hospital, temporary accommodation or otherwise of persons suspected of being infected. Section 2A grants power to the Central Government to take measures and prescribe regulations for the inspection of any ship or vessel leaving or arriving at any port and for the detention thereof, or of any person intending to sail therein or arrive thereby. Section 3 provides for prosecution under Section 188 of the Indian Penal Code, 1860. Lastly, Section 4 protects persons acting in good faith under the Act. Steps such as banning of pilgrimages and public gatherings, disinfection of public places and setting up of hospitals and segregation camps were taken. However, the repercussions of the Act were remembered for years to come. It granted sweeping powers to the colonial authorities. There was forcible segregation of affected persons, disinfections, evacuation, and demolition of infected places.[5] The reasons for the public discontent ranged from impolite conduct to public humiliation. The situation took a turn for the worse in Pune when Walter Rand’s Plague Commission resorted to brutality in the name of controlling the plague. Criticising the Commission’s insensitive approach, Lokmanya Tilak wrote: “Plague is more merciful to us than its human prototypes now reigning the city.”[6] Thus, the draconian Act was instrumental in stirring up feelings of hostility towards the British Raj.

In the wake of the current pandemic, the 123-year-old ED Act is back under the spotlight. In exercise of their powers under the Act, the State Governments have issued their respective COVID-19 Regulations, 2020. These Regulations have resulted in the closure of public places, restrictions on public gatherings and stricter travel rules. On 22nd April 2020, the Government issued the Epidemic Diseases (Amendment) Ordinance, 2020.[7] The ordinance amended the Act to include protection for healthcare service personnel. While the regulations have helped to control the situation to a certain extent, the limitations of the archaic Act cannot be overlooked. Firstly, the Act does not define “dangerous epidemic diseases”. Additionally, the main focus of the Act is on defining the powers of the government. It does not take into account the supplementary matters concerning the rights and interests of citizens. It was soon realised that the ED Act is not suited for dealing with modern public health emergencies. Accordingly, a Public Health (Prevention, Control and Management of Epidemics, Bio-Terrorism and Disasters) Bill was drafted in 2017.[8] However, no further steps have been yet taken to introduce the Bill. Had it become a law, it would have been a stronger weapon in this war against COVID-19. This forced the government to look at alternate provisions in the law, viz The Disaster Management Act, 2005.

The Disaster Management Act, 2005

A disaster is defined as ‘a serious disruption of the functioning of a community or a society causing widespread human, material, economic or environmental losses which exceed the ability of the affected community or society to cope using its own resources.’[9] India has endured major disasters, the latest being cyclone Amphan. In the wake of such situations, it is critical to have a proper legal mechanism in place. Accordingly, the Disaster Management Act (DM Act) was passed on 26th December 2005 for the effective management of disasters in the country. Comprising of 79 sections, the Act aims at creating an institutional mechanism at various levels to deal with disasters. It provides measures to be taken by the Central and State governments in the event of natural & man-made disasters.

Section 2 contains clear definitions of important terms such as ‘disaster’ and ‘disaster management’. Section 3 empowers the Central Government to establish the National Disaster Management Authority (NDMA). The NDMA is responsible for laying down policies, plans and guidelines for timely disaster management.[10] As per Section 14, every State government has constituted a State Disaster Management Authority. Further, every State government has, following Section 25, established a District Disaster Management Authority (DDMA). Additionally, the Act provides for constitution of Executive Committees at the national and state levels to assist the Authorities. All the agencies established under the DM Act are expected to work in coordination. The Central government has the power to take measures and issue directions and every State government must necessarily follow them. There are additional provisions for the establishment of Funds at the National and State level to meet the expenses of disaster management. The Act contains penal provisions for offences ranging from obstruction without reasonable cause to circulation of false warning.

For the first time, the DM Act has been invoked to address a public health crisis. Although the pandemic does not fit into the definition of a ‘disaster’ as per Section 2, it can be considered to be a biological disaster. In an attempt to tackle the rising number of cases, the Ministry of Home Affairs declared the virus to be a ‘notified disaster.’[11] Exercising his powers as the chairperson of the NDMA, Prime Minister Narendra Modi declared a 21-day national lockdown in March 2020. The State governments followed suit by invoking the DM Act in addition to the ED Act. The powers exercised by the home secretary as the Chairman of the National Executive Committee (NEC) have been delegated to the Ministry of Health and Family Welfare.[12] Since the outbreak of the pandemic, the Ministry has been issuing directions and guidelines related to travelling and social distancing. The State governments are taking measures such as setting up of testing laboratories, imposing of lockdown in phases and aggressive testing to contain the spread of the virus. The State Disaster Response Fund (SDRF) is being utilised for taking measures for quarantine, sample collection and procurement of essential equipment.[13] Similarly, district authorities in States affected by COVID-19 have invoked their powers under the DM Act. However, this Act has faced backlash for looking at disaster management from purely an administrative view. Although the Act calls for Centre-State coordination, the ground reality is different. The confusion regarding inter-State movement and lack of coordination with the local bodies resulted in chaos in the initial days of the lockdown. This brought the entire country’s attention towards the plight of migrant workers who were left unemployed almost overnight. This shows that yet again, the humanitarian aspect is missing from the Act.

Need for A New Law

The unified approach of both enactments is helping to contain the spread of the virus to a certain extent. However, mere containment is not enough. With the rising number of cases in India and around the world, it is evident that the virus is here to stay. That is why we need a new, robust legislative framework exclusively for COVID-19. For some countries, enacting a new law has become an essential step towards dealing with the pandemic. For instance, the Families First Coronavirus Response Act was enacted in the USA with effect from April 1, 2020. The Act, which is effective till 31st December 2020, contains provisions for emergency paid leaves, unemployment benefits, free testing and nutrition assistance. This Act is in addition to the Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020 which provides for emergency funding relief. The UK enacted the Coronavirus Act, 2020 which is going to be in force for two years. The Act contains provisions for emergency registration of health professionals to deal with the shortage of approved health staff. Further, it provides extra employment safeguards to emergency volunteers as a way to compensate for their loss of earnings and expenses incurred. Similarly, countries like Hungary and Singapore have also enacted Acts to tackle COVID-19.

Top tips to read case laws

India is the seventh worst-hit nation by COVID-19.[14] It is high time that the government realises that the existing laws governing public health are not enough. The archaic law must be done away with and a new legislation must be brought into force. The new legislation must take into account all the aspects which are impacted by a pandemic. It must have a healthy balance between the powers of the government and the rights of the people. In addition to ensuring basic necessities, the legislation must aim to provide financial support to the affected ones. The pandemic has contributed to the already menacing problem of unemployment in India. The members of the unorganised sector are the ones who are currently bearing the brunt of the problem. This demands an inclusion of clear sector-specific provisions. Most importantly, there is a dire need for provisions relating to better protection of healthcare professionals. COVID-19 has given an opportunity to the government to take a closer look at laws related to health emergencies. If these concerns are left unaddressed today, pandemics in future will be disastrous in more ways than one.

[1] Schedule 7, The Constitution of India.

[2] Ibid.

[3] Epidemic Diseases Act, India’s 123-Year-Old Law to Help Fight the Pandemic, The Wire Science, available at https://science.thewire.in/health/epidemic-diseases-act-india-pandemic/ ,last seen on 28/05/2020.

[4] How the Epidemic Diseases Act of 1897 Came to Be, The Wire, available at https://thewire.in/history/colonialism-epidemic-diseases-act , last seen on 28/05/2020

[5] Rakesh PS, The Epidemic Diseases Act of 1897: Public health relevance in the current scenario, 1(3) Indian Journal of Medical Ethics 156, 157(2016 Jul-Sep), https://www.ijme.in/wp-content/uploads/2016/11/2135-5.pdf last seen on 28/05/2020

[6] S. N. Sen, History of the Freedom Movement in India (1857-1947), 83 (3rd ed., 1997)

[7] The Epidemic Diseases (Amendment) Ordinance, 2020, No. 5 of 2020, available at https://www.prsindia.org/sites/default/files/bill_files/Ordinance%202020%20-%20epidemic%20act%20.pdf

[8] Public Health (Prevention, Control and Management of Epidemics, Bio-Terrorism and Disasters) Bill, 2017 available at https://www.prsindia.org/uploads/media/draft/Draft%20PHPCM%20of%20Epidemics,%20Bio-Terrorism%20and%20Disasters%20Bill,%202017.pdf

[9] 2009 UNISDR terminology on disaster risk reduction, available at https://www.unisdr.org/files/7817_UNISDRTerminologyEnglish.pdf

[10] S 6, The Disaster Management Act 2005

[11] Abantika Ghosh, Coronavirus: 2 new cases, COVID19 notified as ‘notifies disaster’, Financial Express (15/03/2020) https://www.financialexpress.com/lifestyle/health/coronavirus-2-new-cases-covid19-notified-as-notifies-disaster/1898243/ , last seen on 30/05/2020.

[12] Ministry of Home Affairs (Disaster Management Division) order dated 11.03.2020, available at https://www.mohfw.gov.in/pdf/disastermanagmentact.pdf

[13] Modified list of items & norms of assistance from SDRF in the wake of COVID-19 virus outbreak, available at https://www.mohfw.gov.in/pdf/RevisedItem&NormsforutilisationofSDRFdt14032020.pdf

[14] Covid-19: India now seventh worst-hit country in the world, Hindustan Times (31/05/2020), available at https://www.hindustantimes.com/india-news/covid-19-india-now-seventh-worst-hit-country-in-the-world/story-gZ3Nf3jvmeqOj5wVEfU44H.html , last seen on 01/06/2020.

Author Details: Sushmita Sreevalsan Nair (Dr DY Patil College of Law, Nerul, Navi Mumbai)

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