The Epidemic Diseases Act, 1897, invoked by the central and state governments to combat the threat of COVID-19 is a special law, empowering the government to adopt special measures and enforce stringent policies to prevent the outbreak of dangerous epidemic diseases. This legislation, which empowers the government to imprison any person found to be in violation of the prescribed measures, was first enacted to control the Bubonic plague that spread across the then presidency of Bombay in 1896.
Scheme of the Act
The Act with just four provisions is invoked when the government thinks that ordinary provisions of the law, which are in force, are insufficient to contain an epidemic. It gives special powers to both the central as well as the state governments to declare any region as ‘threatened’ and to take measures for containment - like screening of travellers, inspection of sea vessels, provision for special medical wards for affected persons etc.
In particular, Section 2A of the Act empowers the central government to “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.”
Similarly, under Section 2 of the Act, the state government has the power to “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…”
The provision also provides that the state government may take measures and prescribe regulations for the inspection of persons travelling by the railways or otherwise and authorise
medical segregation of infected or “suspected to be infected” persons. The power under this section was invoked by the Delhi state government to frame the Delhi Epidemic Diseases COVID 19 Regulations 2020.
The use of words like “such regulations as it deems fit” confer a wide discretion on the government to inspect any person/ place who/which it “suspects” to be affected. This wide
discretion may also be used to devise penal provisions against disobedience of potentially whimsical regulations framed by the government, in addition to initiating criminal proceedings
under Section 188 of the IPC, as provided under Section 3 of the Act. Any action taken under the Act is protected by a “good faith” clause as per Section 4. According to Section 4 of the
Act, no suit or other legal proceedings shall lie against any person for anything done in good faith under the Act.
No definition of Epidemic Disease
Notably, the Epidemic Diseases Act does not define what is an epidemic disease. The definition or description of a “dangerous epidemic disease” is not provided in the Act. There is no clear
definition of whether an epidemic is “dangerous” on the basis of the magnitude of the problem, the severity of the problem, the age of the population affected or its potential to spread internationally. The regulations under the Epidemic Diseases Act, 1897, requires medical practitioners to notify the public health authority about anybody with a communicable disease
and disclose the identity of the person.
There is a criticism that the Act is purely regulatory in nature, lacking a specific public health focus. The more than a centuryold Epidemic Diseases Act has major limitations when it comes
to tackling the emergence and re-emergence of communicable diseases in the country, especially in the changing context of public health. Over the years, many states have formulated
their own public health laws and some have amended the provisions of their epidemic disease Acts. However, these Acts vary in quality and content. Most are just “policing” acts aimed
at controlling epidemics and do not deal with coordinated and scientific responses to prevent and tackle outbreaks. There is a need for an integrated, comprehensive, actionable, and relevant
legal provision for the control of outbreaks in India that should be articulated in a rights-based, people-focused, and public health-oriented manner.
In 2009, a National Health Bill was mooted to replace this Act with a more right-based regime. The bill recognised health as a fundamental human right and stated that every citizen has a
right to the highest attainable standard of health and well-being. It attempted to ensure a legal framework for providing essential public health services and powers for an adequate response
to public health emergencies through effective collaboration between the Centre and the states. The Bill adopted a rightbased approach and upheld the right to treatment and care. It clearly stated the public health obligations of the government. It also mentioned the formation of public health boards at the national and state levels for smooth implementation and effective coordination. There are provisions for communitybased monitoring and mention of grievance redressal mechanisms, which would ensure transparency. However, the Bill could not get legislative clearance and eventually lapsed. There’s an urgent need to revisit this Bill and come out with a better version of it in times of Covid-19.