In the event of outbreak of Novel CoronaVirus disease (COVID 19), the Government had declared country-wide lockdown in various phases and controlled the movement of masses. Alongwith the lockdown, the respective State Governments have invoked the provisions of the Epidemic Diseases Act, 1897, the Disaster Management Act, 2005 and the Code of Criminal Procedure, 1973 to impose certain restrictions in order to prevent the spread of COVID 19. Penal provisions of the said statutes are being used as preventive and curative measures.
In this post we would be explaining the scope of powers under the two statutes, and the deficiencies therein. We further explore the Public Health (Prevention, Control and Management of Epidemics, Bio-terrorism and Disasters) Bill, 2017 and recommend promulgating it as an Ordinance to better counter the pandemic, since it would enable stricter penalties and statutory support for implementation of policies regarding ‘quarantine’, ‘social distancing’, ‘isolation’, ‘decontamination’.
The Epidemic Diseases Act, 1897:
It is a century old legislation enacted to prevent the spread of dangerous epidemic diseases. It is one of the shortest legislations consisting of four sections.
Section 2 of the Act deals with the power of the State Government to take special measures and prescribe regulations as to dangerous epidemic diseases.
Section 3 of the Act deals with penalty. Any person disobeying any regulation or order made under the Act shall be deemed to have committed an offence punishable under section 188 of the Indian Penal Code.
Section 4 of the Act deals with protection to public servants from legal action while acting in good faith under the provisions of the Act.
The Epidemic Diseases (Amendment) Ordinance, 2020:
The present crisis grew more difficult to handle as reports of attacks on medical staff, policemen, health workers were seen in the print and electronic media. A need was felt to secure their lives in the outbreak of such disease and to cause deterrence by taking strict action against the persons attacking/assaulting the healthcare personnel.
As a result, recently the Hon’ble President of India has promulgated the Epidemic Diseases (Amendment) Ordinance, 2020 on 22.04.2020. The ordinance amends the Epidemic Diseases Act, 1897 to include protection for healthcare personnel who are dealing with combatting epidemic diseases so also ordinance expands the power of the Central Government to prevent the spread of such diseases. Ordinance defines the terms like ‘healthcare service personnel’ and ‘act of violence’, and incorporates provision for its protection and penalty for the same.
The Disaster Management Act, 2005:
Apart from the Epidemic Diseases Act, 1897, this Act provides for the effective management of disasters and for matters connected therewith. Section 2(d) defines the term ‘disaster’ and includes a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area.
The outbreak of Corona Virus is considered as a disaster causing human suffering and loss of life situation. Therefore, the National Authority established under section 3 of the Act headed by the Hon’ble Prime Minister of India by invoking power under Section 6 of the Act has taken such measures for the prevention of disaster, or the mitigation, or preparedness and capacity building for dealing with the threatening disaster situation or disaster. Exercising powers under the Section 6 of the Act, country wide lockdown was declared so also preparation of quarantine centres, isolation wards, COVID 19 hospitals etc was undertaken by the Government.
By invoking powers under sections 12 and 13 of the Act, guidelines are issued by the National Authority headed by the Hon’ble Prime Minister of India for minimum standard of relief in the nature of shelter homes to migrants, food, health facilities, relief in repayment of loans etc. Even under Section 19 of the Act, the State Authority headed by the Hon’ble Chief Minister of the State has power to issue guidelines for minimum standard of relief in the nature of shelter homes to migrants, food, health facilities etc. and as such either the National Authority or the State Authority have played vital role in issuing guidelines under this Act to prevent the spread of COVID 19.
The Disaster Management Act, 2005 empowers the National and State Authority established under the Act to take all precautionary measures as well as curative measures including penal action for breach of guidelines in the outbreak of coronavirus as a disaster.
Public Health Bill, 2017 and the way ahead:
The Central Government and respective State Governments are taking serious efforts to control the spread of coronavirus in the country, however, by stretching the contours of the provisions under the Epidemic Diseases Act, 1897 and the Disaster Management Act, 2005.
In effect, it is the strategies, action plan, guidelines enumerated in the Bill that are being used by the respective Governments under the shield of the Epidemic Diseases Act, 1897 and the Disaster Management Act, 2005, when in fact the said guidelines do not find place in the said two statutes. This raises two problems: (i) Vague terms being used to stretch contours implies higher degree of variance in action of different State Governments and Central Government; (ii) It makes the action of the Government vulnerable to challenge before the Courts of law; (ii) Strict penalties under the bill cannot be resorted to in case of unambiguous limits under the Epidemic Diseases Act, 1897 and the Disaster Management Act, 2005.
The Public Health Bill, 2017 provides for the prevention, control and management of epidemics, public health consequences of disasters, acts of bio terrorism or threats thereof and for matters connected therewith. The Bill defines terms like ‘quarantine’, ‘social distancing’, ‘isolation’, ‘disaster’ ‘decontamination’ etc. which form part of guidelines and mandate in the present pandemic situation. The Bill further provides for wider power of Central and State Governments during public health emergencies including to prohibit any such activity as stated which is or is likely to be inimical to public health; quarantine or restrict the movement of any person or class of persons or any object or class of objects suspected to be exposed to any such disease;isolate any person or class of persons infected or suffering from any such disease; appropriate measures in such circumstances including closure of markets, educational and other institutions and social distancing;
Disobeying any regulation or order made under both the statutes are either deemed to have committed an offence punishable under section 188 of the Indian Penal Code or offences with lesser/petty punishment. The nature of penalties enumerated in the said statutes are either lesser or ineffective or less deterrent. As a result, a number of persons are seen disobeying the said guidelines/statutes.
Alongwith uniform law to deal with the pandemic situation, there is a need for causing deterrence by permitting imposition of stringent penalties and punishment. The Public Health Bill lays down imposing penalty for contravention due to negligence of order/guidelines issued under the proposed law. It further laid down that for the first contravention penalty not exceeding Rs.10,000 and Rs.25,000 for repeated contravention shall be imposed. It further mentions imposing penalty for wilful or intentional contravention of order/guidelines issued under the proposed law. It laid down that for the first contravention penalty not exceeding Rs.50,000 and Rs.1,00,000 for repeated contravention shall be imposed.
Undoubtedly, India’s large population poses a great challenge in dealing with a pandemic COVID 19. However, the management of such situations can be strengthened by enacting the Public Health Bill or by promulgating an ordinance which would bring uniformity and cause deterrence by imposing strict penalties and punishment in dealing with the critical situation.
Authored by Ajinkya Kale, Partner at Talekar & Associates
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